Oct 15, 2020
Amy Coney Barrett Senate Confirmation Hearing Day 4 Transcript
Day 4 of the Supreme Court confirmation hearing of Amy Coney Barrett took place before the Senate on October 15. Read the transcript of the full hearing here.
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Lindsey Graham: (04:19)
Thank you all. We have business before the hearing. the following nominees and legislation would be held over. Amy Coney Barrett Supreme Court, Benjamin Beaton, Western District, Kentucky, Christian Johnson, Taylor McNeil, Catherine Moselle, Thompson Diaz, United States Court of Federal Claims, S4632 Online Content Policy Modernization Act. All those will be held over.
Senator Durbin: (04:52)
Lindsey Graham: (04:53)
Senator Durbin: (04:54)
Mr. Chairman, under the rules of this committee, you cannot proceed with the business of the committee, even with a quorum president, unless there are two members of the minority present as well. I want to take a official note of the fact that I am the only member of the minority that is here. And so we cannot conduct business until that second member of the minority arrives.
Lindsey Graham: (05:13)
Yes, sir. Senator Durbin, thank you for, one, the way you conducted yourself yesterday. It was clear to me from reading in the paper that what’s going to happen is that we’re going to be denied the ability to operate as normal, that Senator Schumer said at everything is on the table and we’ve given this nominee a chance to be questioned fairly, firmly. And I want to congratulate my democratic colleagues for having a disposition that I think will help us all, but I know what awaits us. So I will now make a motion to report the nomination of Amy Coney Barrett, a motion to vote on the motion to report from the committee. The nomination of Amy Coney Barrett to be associate justice in the Supreme Court in the United States on October 22nd, 2020 at one o’clock.
Senator Durbin: (06:10)
Lindsey Graham: (06:11)
Senator Durbin: (06:12)
You cannot conduct that business without another minority member present.
Speaker 1: (06:16)
These are all the dates.
Senator Durbin: (06:17)
And so at this point, I’m going to make a motion to adjourn this meeting until we have completed the hearing on Amy Coney Barrett. We still have a panel before us. This is unprecedented. We have never done this before as a committee. And if we are going to honor the rules and show mutual respect, the fact is, we cannot move forward without another member of the minority present.
Lindsey Graham: (06:40)
Senator Durbin, with all due respect, we’ve had this problem in the past. We’re dealing with it the way we are today. If we create this problem for you in the future, you’re going to do what I’m going to do, which is move forward on the business of the committee. On the motion, the clerk will call the roll.
unnamed committee members: (06:55)
Aye. Aye. Aye. Aye. Aye. Aye.
Senator Durbin: (07:21)
No by proxy. No. No by proxy. No by proxy. No by proxy. No by proxy. No by proxy. No by proxy. Mr. Chairman, I failed to answer no by proxy for Senator Feinstein.
Lindsey Graham: (08:02)
So noted. I vote aye.
Speaker 1: (08:09)
The motion is passed. We’ll be voting on Amy Coney Barrett to be an associate justice Supreme Court at one o’clock on October the 22nd. Now, before the committee is Senator Durbin’s motion to adjourn. Would you like to say anything else, Senator Durbin?
Senator Durbin: (08:25)
I withdraw the motion.
Lindsey Graham: (08:30)
Okay. Thank you. Now we’ll move forward with the hearing.
Senator Durbin: (08:34)
Mr. Chairman. Yes. I’d like to make a motion. I seek recognition to make a motion.
Lindsey Graham: (08:42)
Senator Blumenthal: (08:43)
I moved to indefinitely postpone the nomination of Amy Coney Barrett-
Lindsey Graham: (08:47)
No we’re not.
Senator Blumenthal: (08:48)
… to be an associate justice of the United States Supreme Court. I believe that this rush sham process is a disservice to our committee. She has been rushed in a way that is historically unprecedented. There’s never been a nomination in an election year after the month of July. And the purpose of doing it is simply to have a justice on the Supreme Court, as the president said, to decide the election and to strike down the Affordable Care Act. We’ve had inadequate time to review this nomination. As indicated most recently yesterday, a CNN report that there are seven more speeches or talks that she has given that have not been disclosed to this committee.
Senator Blumenthal: (09:44)
The consequence of this rush process is that we’ve given inadequate scrutiny to this nominee. I move to delay these proceedings so that we can do our job and ask again for all of the documents, the 2006 open letter, the 2013 letter are among the documents that previously were undisclosed. We now have apparently reportedly seven more and I moved to delay the proceedings.
Lindsey Graham: (10:15)
Thank you very much, Senator Blumenthal. The material you’re talking about will be made available. I think everybody understands the issue about Judge Barrett and the position she takes as an individual. As to the process, it will be seven days from the time of the hearing to the vote. The last 50 years, 676 times, we’ve done exactly what we’re intending to do today. Over half, about half of the nominees nominated by a president have that hearing within 16 days. That happened here. We’ve had two Supreme Court justices confirmed totally from the time there were nominated to being on the voting by the Senate 17 to 19 days. Justice Ginsberg was 33 days. So there’s nothing out of the norm here in terms of the time we’ve given this matter. We’ve had two days of hearings. Each member had 50 minutes. So with all due respect, we’ll call the roll motion-
Senator Klobuchar: (11:23)
Lindsey Graham: (11:24)
And I will be urging a no vote. Yes, ma’am.
Senator Klobuchar: (11:27)
Mr. Chairman. I just wanted to join in with Senator Blumenthal here. This is a sham. And I just heard you talk about precedent. The closest precedent, which what matters to me is what all of you said and what you said, Mr. Chairman, and what Senator McConnell said, where he set the precedent. He said the American people should have a voice in the selection of their next Supreme Court justice therefore, when was looking back at the Merrick Garland time, this vacancy should not be filled until we have a new president. This is even closer in time than that. And the best precedent that we really have is when Abraham Lincoln was president. And it was the closest in time that we have had in history to this when a justice died closest to the election and he waited until after the election to make the selection.
Senator Klobuchar: (12:20)
And I look at the words of my colleagues in this committee, people I work with very well all the time. I look at that historical example and I think it leads us to one end and that is that we should allow the winner of the election to pick this nominee, that we should make sure that we do this after the election. And that we remember that we have literally millions and millions of people voting as we speak. You all know that. And the final thing that concerns me is that the President himself has been making it very clear why he wants this justice on the court. He said he wants nine people after the election. He says that he wants a court that’s going to overturn Obamacare. He has made all of this clear. So to me, not only do you have your own precedent, not only do you have the example of Abraham Lincoln, but you have the fact that because of what this president has been saying, it undermined this process, undermines the court.
Senator Klobuchar: (13:21)
And that is why we should delay. And the final word is why we are not working right now on a COVID relief package in the middle of a pandemic is the final pits about this whole process, because that’s what we should be doing. That’s what the American people want. 74% of them say, we should be doing that instead of working on this. And I think the time has come to be honest about what’s going on here. You are just trying to ram through this justice against your own words, in light of everything this president has said where he won’t even commit to a peaceful transition of power.
Senator Klobuchar: (13:58)
That’s the world we’re in right now. It’s not some ivory tower where people are talking, with all respect to one of my colleagues about the dormant commerce clause. This is about peaceful transition to power and the effect that this has on people’s lives, the effect it has on their lives when the Affordable Care Act is hanging in the balance and whether or not people are going to be kicked off of their health insurance for preexisting conditions, that’s what we should be focused on. And I join Senator Blumenthal in his motion.
Lindsey Graham: (14:28)
I’ll recognize Senator Feinstein in a moment. I feel as chairman, I want to hear anybody that wants to speak on this motion. We’ll vote. We have a panel from the American Bar Association. We have an eight person panel, four for, four against chosen by the minority and the majority. I will do whatever my colleagues want in terms of motions and being heard. I hate it for the panel, but I’ll let you decide what we do today. We’re going to vote on the judge on October 22nd, but I would prefer, if it’s possible, we could hear from the panel, but I’ll leave it up to my colleagues. Senator Feinstein.
Senator Feinstein: (15:17)
Thanks, Mr. Chairman. As far as I know, this is being done without any precedent in the time, at least I’ve been on this committee, which is about 25 years and it’s being done, I guess, to show power and push someone through and really abrogate the value of hearings that this committee should treasure and respect. As somebody that’s been on this committee for a while, I’ve really come to value the hearings and the search for information and the desire to do justice to individuals. So I really don’t understand why it makes a difference, whether it’s two weeks or three weeks or four weeks. It allows us to complete a process which we have put in place that has worked, I think very well over time. And once we do this, we breach, I was going to say the etiquette of the committee. I’m not sure etiquette is the right word, but it breaches everything that we have held dear, and the processes that we have moved forward with. So I very much hope this does not happen and there’s no need for it. And it’s going to create a lot of bad will that doesn’t need to be created so thank you, Mr. Chairman.
Lindsey Graham: (16:45)
Thank you very much. And I’ll recognize Senator Cruz here, but I just a brief word. In October, I can’t remember when it was in 2013, I had a call from Senator Schumer. We’re going to change the rules regarding certain court nominations. And it was relatively late in the evening. And I said, please don’t do that. There’ll be no going back and you’ll live to regret it. My view is that set in motion a lot of things that have taken the Senate in the wrong direction. No longer do you require 60 votes. That started with circuit courts. The belief in 2013 was we’re going to pack the DC circuit court with people friendly to our cause as for all litigation regarding the government goes and nobody thought you’d lose in 2016, including me. I’ve gotten to know the President, but I voted for somebody I really wouldn’t know if they walked in the door.
Lindsey Graham: (17:44)
The bottom line is, 2016 gave an outcome different than everybody in the country thought, except the people who voted for the president in the right amounts, in the right states. And isn’t that ironic, the American people actually get a say. And from that day forward, there’s been an effort to say that election didn’t happen. It’s not legitimate. Donald Trump is not really the president. As much as I was disappointed that Barack Obama beat John McCain, I accepted the outcome. I voted for his nominees. There is no way you will ever convince me that Amy Coney Barrett is not qualified using any reasonable standards of qualification. If I applied to Justice Sotomayor and Kagan the standards you’re being imposed upon every Republican nominee since I’ve been there, I wouldn’t have voted for them. Senator Leahy to his credit, voted for Justice Roberts, and that’s sort of been the end of it.
Lindsey Graham: (18:43)
So the qualification test to me seems to be dead and buried with everybody but me and I’ll have to reevaluate where I am. I want it to be fair, but it’s kind of silly to play a game nobody else is playing. Now as to me, in August of this year, I was asked directly what about a vacancy? I said, after Kavenaugh there everything’s changed for me. I’m not going to sit on the sidelines and watch one of our nominees be destroyed after showing respect for two democratic nominees. That is not right and I’m not going to do that. As to Judge Barrett, the time periods we’ve talked about extensively. the same party as the president, the same party as the Senate. Senator Cruz is very smart on all this stuff. I made sure you had a chance to test her. You did. And I want to compliment each member of the democratic side for being firm, but not going down the Kavanaugh road. And we have two panels waiting on us. We’ll do whatever the committee likes. I’d prefer to hear from them, but Senator Cruz.
Senator Cruz: (19:55)
Lindsey Graham: (19:56)
After Sarah Cruz, we’ll go to Senator Durbin.
Senator Cruz: (19:59)
Yes. Thank you, Mr. Chairman.
Senator Blumenthal: (20:02)
I’d like to be heard too, at some point.
Lindsey Graham: (20:02)
I promise you everybody will be able to talk.
Senator Cruz: (20:08)
Thank you, Mr. Chairman. I think it is important for the record to reflect that moving forward on this nomination is consistent with two centuries of precedent and tradition in the Senate. Numerous democratic members of this committee have given speeches. I see they have charts prepared to give more speeches, all attacking the legitimacy of these proceedings. And as John Adams observed, facts are stubborn things. The scenario of a Supreme Court vacancy occurring during a presidential election year is not a new thing. It has occurred 29 times in our country’s history. Presidents have made nominations all 29 times. The precedent is unequivocal and uniform. When a vacancy occurs in a presidential election year, the president makes a nomination. That includes Republicans, that includes Democrats.
Senator Cruz: (21:11)
A total of 44 people have served as president of the United States. 22 of them, half have made a Supreme Court nomination during a presidential election year. What has the Senate done? Again, the precedent is clear. Of those 29, 19 of those occurred when the president and the Senate were of the same party. Of those 19, the Senate confirmed 17 of them. The precedent is clear for a long, long time that if the president and Senate are of the same party, the Senate in all but extraordinary circumstances confirms that nominee. How about when the Senate and the president are of different parties? That’s happened 10 times. In that circumstance, the Senate has confirmed the nominee only twice. 2016, which are friends on the democratic side, invoke, and I understand why they invoked it. They were frustrated. 2016 was one of those instances in which President Obama was a Democrat. The Senate was in control of the Republicans. They had differing views on the kind of justices that should serve on the court. And so the election resolved those views. One example that has been pointed to Senator Klobuchar just pointed to it. Senator Harris, at the vice presidential debate previously pointed to it, was Abraham Lincoln. We are told that on a stage, the founder of the Republican party is showed the example for why we should not be proceeding on this. I think it’s worth noting that, that example misses a lot of the story. So Abraham Lincoln in 1864, 27 days before the election, Chief Justice Roger Taney passed away. Roger Taney, by the way, had been the author of the infamous Dred Scott decision, an abominable decision of the Supreme Court. So suddenly there was a vacancy 27 days before the election. Senator Klobuchar and Senator Harris before her both pointed out the fact that Abraham Lincoln did not make a nomination in those 27 days. What both of them omitted was the Senate wasn’t here. The Senate had left, they had gone home. This was not the age of jet travel. This was not the age of commuting every weekend, jumping on a United flight. They were gone and the Senate would not return until December. So there was no Senate physically present to confirm that nominee. When the Senate did return in December, Abraham Lincoln nominated in December a justice to fill that seat. Salmon Chase, which the Senate confirmed the next day. 24 hours later, they confirmed him. I would note also that Abraham Lincoln was in the midst of a presidential reelection and as Doris Kearns-Goodwin writes so beautifully in Team of Rivals, he was very good at assembling the political coalition he needed to win and so he had multiple factions of the Republican party that were splintered. Some things haven’t changed from 1864.
Senator Cruz: (24:37)
And Lincoln had multiple players that wanted that chief justice seat, all working really hard to re-elect him and dangling the nomination out in front of each of them. So Salmon Chase had been his treasury secretary. Salmon Chase had been a pain in the rear to Lincoln. And as a result of this vacancy, Salmon Chase went out and campaigned like crazy for Lincoln to get him reelected because he wanted the nomination. None of that should be shocking as a matter of history. And there are many members of this committee that enjoy being students of history. But to suggest that that is somehow a precedent and that requires us not to fill this vacancy now is, well, I actually can’t put it better than the Washington Post, who fact-checked Senator Harris on this claim. And the Washington Post, not exactly a right-wing bastion, the Washington Post conclusion was that Senator Harris’s argument “wasn’t exactly true.”
Senator Cruz: (25:38)
So I recognize that our democratic friends wish a different president had been elected in 2016. I’m sympathetic to those arguments. I recognize that our democratic friends wish there was a democratic majority in the Senate, but the voters decided otherwise and so this committee moving forward is consistent with over 200 years of history and precedent.
Lindsey Graham: (26:10)
I wonder in our time, who is the Salmon Chase of the Republican party. So many to choose from. Senator Durbin.
Senator Durbin: (26:20)
Mr. Chairman, I want to first thank the Senator from Texas for his sympathy. We know this is different. What we’re witnessing this morning, and this week is different than anything we’ve seen. Some of us have Robert Bork stuck in our craw. Others have Merrick Garland stuck in their craw, in of what has happened here. But I think we all need to concede that we’re not in a place where we should be when it comes to the operations of this committee and of the Senate and our relationship with the Supreme Court. The Chairman started this hearing by reminding us about votes that were taken 98 to nothing for Anton Scalia, 96 to three for Ruth Bader Ginsburg, Ruth Bader Ginsburg’s vote, incidentally was some six years after the Robert Bork experience.
Senator Durbin: (27:12)
How did we manage to put together bi-partisan coalitions for people on such opposite ends of the political spectrum, who we knew going in, were very clear in what they believed. And now today we struggle, vote to vote, day to day when it comes to the filling of vacancies on the Supreme Court. I think there are a lot of explanations for it. One of the things that we have witnessed here and I have witnessed in the time that I’ve served on this committee is a denigration of the process to the point where it’s almost useless. We’ve reached a point now where gifted, experienced jurists, legal scholars, take that seat behind the table and then deny everything. Refuse to answer anything.
Senator Durbin: (28:02)
Consider that. Here we are in a situation where we asked, Senator Feinstein asked the nominee, can a president unilaterally delay a presidential election. She couldn’t answer. Too political. Too political? Three express provisions in the constitution that spell out that that is the standard for the United States of America. She could certainly have alluded to that. I asked her as a follow-up, can a president unilaterally deny a woman the right to vote. 19th amendment. Sorry, can’t answer. It could be case come before me someday. It even reached the point where Senator Kennedy asked this learned attorney, professor and jurist if she had any opinion on the issue of climate change. And basically she said, never thought about it. Don’t have any views. What are we dealing with here? We’re not dealing with the reality of who this person is and what she believes, but some kind of artifice that we have constructed between the nominee and our questions. I would be afraid to ask her about the presence of gravity on earth. She may declined to answer because it may come up in a case, it could come before the court someday. And then I look back in history at other nominees, both conservative and liberal, who have answered questions along these lines. What was the purpose of this hearing, if we reached the point now where we really don’t know what she thinks about any issues, any major issues, she hides behind originalism. She’s not the only one, many do, but won’t even go to the original words of the Constitution when it comes to the transition of power. It just defies logic that we’re putting ourselves through this on the notion that we are measuring a person who will spend the rest of my natural life and many on the committee, serving on the court if she ends up being nominated and approved and confirmed.
Senator Durbin: (30:01)
And we know that this process is really stacked. The President told us so, repeatedly. Where we can’t get a direct answer from the nominee, we get direct answers every day in the tweets of the president. we know exactly what his motive was in nominating this person for the Supreme Court. He doesn’t cover it up. His motive was to make sure that there’d be someone on the court to eliminate the Affordable Care Act. You have been respectful of the fact that we brought all these photographs before you. I thank you. But I will tell you that they are meaningful to each and every one of us and should be to you as well. These are people genuinely concerned about the future of healthcare in the midst of a pandemic. They are worried that this deck is being stacked to eliminate the only protections they have at a time when they’re facing a life and death scenario every day over masks and their conduct as citizens.
Senator Durbin: (30:56)
And to think what this president has said, one of the members of the committee said, I’m not going to vote for anyone until I am certain that she’s going to overturn Roe vs. Wade, then announces I’m voting for her. Now we’re getting the deck stacked again, as to what we can expect. The president has said as much. And then as a grace note, the president adds, we need to be sure we have nine justices on the Supreme Court in case there’s an election contest. My friends, how obvious can this be? We know what the President had in mind when he came up with this name. Now she may deny it, but she’s denied that she even has a view on climate change. I’m really at a point now where I have to say, we have to really believe what the President said. He picked a nominee that he thought would achieve his political goals.
Senator Durbin: (31:40)
And we are breaking the rules of the Senate, breaking the rules of this committee, we are defying our own tradition, common sense, and the mutual respect, which led to votes of 98 to nothing and 96 to three. I don’t know how we get this train back on the track. But this nomination at this moment in time is not usual, not normal. And it’s beneath the dignity of this committee. We should’ve played by the rules and the rules would have told us to wait as Senator McConnell told us four years ago, until after the presidential election. When we discarded the McConnell rule, it was clear that all bets were off. We are going for this nominee at any price, at any cost and one of them is the integrity of this committee.
Lindsey Graham: (32:21)
Thank you. I’ll recognize Senator Lee here in a second, but let me give you my take on what I saw. How did we get here? We’re we’re talking about things unrelated to qualifications. She talked extensively about severability and whether or not zero becomes attacks that she would apply the law, the holdings of NFIB versus Sebelius. Did the change by Congress change that holding where you went from a dollar or whatever it was to zero, but if you cross that threshold, that it would be unconstitutional. You still have to ask the question, can you save the statute?
Lindsey Graham: (33:02)
I have to ask the question, can you save the statute through a severability analysis with a presumption that you try. As to climate change, anybody who has doubts about climate change is weird in your world. You’re trying to make her something she is not. You’re asking her questions about what happens if the president pardons himself. What is she supposed to say? All I can say is that Donald Trump was the nominee, not her. It’s pretty obvious to me what you tried to do to this nominee. Every time you talked to her about the law, she gave you rational, common sense answers. She talked extensively about originalism and how different people can come out with different conclusions using the same process, so I personally reject the idea that she wasn’t forthcoming. I thought she was incredibly forthcoming about who she is and the way she would judge.
Lindsey Graham: (34:09)
Now, the game has been since she’s been nominated to get back at Trump, and I understand that’s probably what I would do if I were y’all, because there’s not much you can say about her ability to be a judge. If anybody in America is ready to go to the Supreme Court it’s Amy Barrett. If anybody in America has done the homework to be ready for this moment, it is Judge Barrett. If anybody in America has the character and the disposition to handle the job is her in my view. Senator Lee.
Senator Lee: (34:41)
Thank you, Mr. Chairman, I wanted to cover a couple of issues. Senator Cruz already covered the first point I was going to raise, which relates essentially to the observation that there is no indication from the historical record that Abraham Lincoln would have deferred to George McClellan on the issue of filling that seat that went to Samuel Chase had the election of the fall of 1864 gone differently. None whatsoever. It’s just not what happened. Secondly, the Dormant Commerce Clause has been brought up. It is an issue that’s deeply personal to me and should be to every American. Look, Dormant Commerce Clause is exactly-
Lindsey Graham: (35:23)
We believe you.
Senator Lee: (35:24)
… is actually one of the more important things the federal judiciary does. It’s not entirely uncontroversial. In fact, he it’s, it’s been the subject of some controversy. It impacts the way that a state or a political subdivision of a state can treat an article of commerce and whether or not it could be discriminated against based on its origin or destination out of state or outside the United States. It’s controversial for a number of reasons, including the fact that it ends up affecting revenue streams that states and their political subdivisions can access and how they can access them, and it’s based on an interpretation of the Commerce Clause of the U.S. Constitution, one that is often understood as providing Congress with an affirmative grant of authority to regulate interstate commercial transactions and channels and instrumentalities of interstate commerce.
Senator Lee: (36:13)
It has also been interpreted by the courts as creating a cause of action against state’s municipalities, and other political subdivisions of states in those circumstances where discrimination against interstate commerce has occurred. This is a significant thing. To call it insignificant only highlights the fact that there were some issues and not others that some of my colleagues want to focus on, and they’ve wanted to focus almost exclusively on those issues. Why? Well, I don’t know, perhaps in some ways to convert this nominee and other nominees into somebody who can be measured against the backdrop of a democratic politician. If you’re looking at a democratic policy maker, Amy Coney Barrett is not a policy maker, and as far as I’m aware, she’s not a Democrat.
Senator Lee: (37:04)
You’re upset with the fact that she won’t unequivocally commit, as some other nominees, have to upholding certain sacred cow precedents. But it’s not as though your observation is that she lacks commitment to precedent generally, it’s just that she won’t commit to certain precedents that might well become subject to additional litigation in the future. It is important moreover, to remember that elections do in fact have consequences. In the election of 2014, the American people voted, and they elected Republicans to the Senate. In the election of 2016, the American people voted and they elected Republicans to the Senate and a Republican to the White House. In the election of 2018, which I would note here, followed immediately on the heels of frankly, abominable treatment by members of this committee on the other side of the aisle of Brett Kavanaugh. The American people in the immediate wake of that mistreatment of Brett Kavanaugh and your manipulation of these committee hearings elected a Republican majority to the Senate.
Senator Lee: (38:19)
Those terms for each of those senators last six years, not two years, not four years, not five and three quarters years. Six years. Those terms matter, and just as Ruth Bader Ginsburg herself noted in 2016, there’s nothing in the constitution that indicates that the president is no longer the president in the final term of his office. So too here. So too with U.S. senators. Nothing makes us less senators depending on our proximity to our next election. Certainly there is nothing about this nominee that can be left as suggesting that she’s anything other than an extraordinarily gifted jurist who’s well-prepared for her service on the federal judiciary, in a different capacity, instead of being on the Seventh Circuit on the Supreme Court of the United States. The fact that she won’t commit to certain controversial policy positions makes her more qualified for the job, not less.
Senator Klobuchar: (39:31)
Lindsey Graham: (39:33)
Senator Klobuchar: (39:35)
Well, Senator, I just wanted to respond too-
Lindsey Graham: (39:38)
We will, but you’ve spoken. I’ll make sure you can respond. I just wanted to recognize-
Senator Klobuchar: (39:42)
I know. Both of these comments by Senator Cruz and Senator Lee have invoked my name.
Lindsey Graham: (39:47)
Okay, go ahead.
Senator Klobuchar: (39:48)
Lindsey Graham: (39:49)
Senator Leahy: (39:49)
Mr. Chairman, I’d like to be heard.
Lindsey Graham: (39:51)
I promise you, you will be.
Senator Klobuchar: (39:53)
Okay. I have nothing against the Dormant Commerce Clause, Senator Lee, but today, just like you did before, you are bringing me up for reason, and that is to make this seem all esoteric and apart from the lives of the American people. I believe that’s why you’re bringing this up, and that’s why we’re spending on your side so much time on some of these things that aren’t relevant to people’s lives, and I figure it’s our job. Since you guys plopped this nomination proceeding in the middle of an election, it’s our job to make people understand how very much, if this nominee gets on the court, it’s going to affect their lives, because the case coming up right after this election is about the Affordable Care Act, where the Trump Administration has argued very clearly that they should throw the whole thing out, the Affordable Care Act.
Senator Klobuchar: (40:50)
So whatever academic discussions you have about severability with the nominee, that is the case that they are making, and so what I did the last few days and so many of my colleagues did up here, politely, was make the case about where this nominee is. She wouldn’t even answer if she knew that Donald Trump’s position was to try to get judges on who were in favor of striking down the Affordable Care Act. She wouldn’t answer a question, so I’ve got to look at the tracks. As I said, the other day, up in Northern Minnesota, we follow the tracks. We follow the tracks, the deer track to see where the deer went, so all I’m left is with her tracks. And what her tracks showed me was that she blatantly criticized Justice Roberts for his argument, his legal reasoning for upholding the Affordable Care Act.
Senator Klobuchar: (41:40)
She then goes and says, she thinks that Scalia has a stronger argument in another case, which had upheld the Affordable Care Act, but Scalia’s on the other side. She then takes on precedent that had been set long that felon shouldn’t be able to possess guns as Senator Durbin got out. That’s another track that I followed down that way. She then signs on to a paid newspaper ad that refers to Roe V. Wade as barbaric on the anniversary of Roe V. Wade. Okay, that’s another track. You can have different views on the issue, but this is what I’m left with and what the American people are left with to look at the tracks. So I just don’t think you can separate this from the election that we are in, so that is why I think it is a plan to talk about things like Dormant Commerce Clauses, so we can get away from what the real world repercussions are of this judge and of doing this to the American people in the middle of an election.
Senator Klobuchar: (42:38)
But do I come out of this, as I said, as Justice Ginsburg would say in her dissents that they were blueprints for the future, as opposed to, as someone once said, cries of defeat? I don’t come out of this for the cries of defeat. You know why? Because it’s motivating more people to vote. You chose to do it in the middle of election, so let’s all go out there and vote. That is what’s happening, because this should not be Donald Trump’s judge. This is your country, I say to the American people, not Donald Trump’s, and this should be your judge, not Donald Trump’s judge, and they are watching.
Lindsey Graham: (43:13)
Thank you. And now I’ll recognize somebody on our side after I have a moment. Just we’ll keep talking here. So number one, the tracks were clear to me when it came to Justice Sotomayor and Kagan. I didn’t need a bloodhound to tell me where they were going to go. I understood based on their writings and their philosophy they would be with a liberal majority most of the time they have been. I wasn’t surprised at all. I accepted that as the outcome of President Obama’s selection, but it was equally obvious to me, Senator Klobuchar, that whatever personal opinions I have … I’m sure I didn’t even ask them if they were pro-choice. Do you think it would be hard to follow the tracks of Justice Ginsburg? She worked for the ACLU. She was a prominent, progressive thought leader. She openly talked about her pro-choice views, and she ever had every right to hold them, and she was true to herself.
Lindsey Graham: (44:16)
And when the Senate voted, they knew they were getting someone very special, but from a conservative point of view, with a completely different philosophy, and the Senate saw the same thing in Scalia. How much tracks did you need to figure out that Scalia would be an originalist? And the bottom line with Judge Barrett, like Sotomayor and Kagan, she’s somebody that a Republican would pick. Republicans generally look at people of a disposition like Judge Barrett. Democrats generally look at people of a disposition like Justice Sotomayor and Kagan. You all have a good chance of winning the White House. I don’t know where the polls are going to be.
Senator Klobuchar: (45:00)
Thank you for acknowledging that, Chairman.
Lindsey Graham: (45:01)
Yeah, I think it’s true. I think the public will go into the voting booth and they’ll say, “Okay, I’ve seen the kinds of judges Democrats will nominate. I’ve seen the kinds of judges Republicans will dominate,” and that will be important to people. I think that Judge Barrett is exactly the kind of person that you would expect any Republican president to consider. Not because of there’s a bunch of money to get us there, just because of who she is, the way she’s lived her life and the philosophy she espouses, so with all deference and respect to Senator Klobuchar, this is not hard to figure out it. It wasn’t hard for me to figure out that Sotomayor and Kagan were of a disposition different than I have, but I trusted them in the big moments to apply the law and not turn it upside down. And they have been with a liberal majority, but I don’t believe they’ve been activist judges. I really don’t, and every time they rule in some fashion that the conservatives in America don’t like, I get blamed for it.
Lindsey Graham: (46:12)
Now I’m getting blamed for everything Roberts did. All I can tell you is that I found them all eminently qualified, and if Judge Barrett decides that the Affordable Care Act can stand because of severability, I don’t want you to be surprised, because is pretty obvious to me she’s thinking long and hard about that. I have no idea how she will rule. So at the end of the day, I don’t own what they do once they leave here. I make a judgment that these people that … Do the people before us, are they qualified by any reasonable standard of intellect and character? And the answer is yes. How did we get 96 and 97 votes for Scalia and Ginsburg? That was the analysis was qualifications.
Lindsey Graham: (47:05)
If we go any deeper than that, President Obama voted against Bush nominees. He said, “Qualifications get you to 70% or 80%. The heart is what you need to get over the line.” I don’t know how to do that, and when President then Senator Obama applied that standard I said, “Oh my gosh, basically what you’re saying is I’m not going to vote for anybody that doesn’t think like me judicially, and it is as the election didn’t exist when it comes to judges.” So to my colleagues, it’s okay to have this hearing now. It’s okay to vote now, because as Justice Ginsburg said, presidential terms are for four years, and I want every American to think long and hard about who would you like to be on the court, knowing the difference between the party preferences. That to me is more important today than it’s ever been, and with that, I’ll yield to Senator Lee.
Senator Leahy: (48:10)
And then I’d like to be recognized.
Lindsey Graham: (48:12)
You will be next. You’re on deck. You’re on deck.
Senator Leahy: (48:16)
Senator Lee: (48:17)
Senator Klobuchar, you’re actually making the point that I’m trying to make. The Dormant Commerce Clause does, in fact, impact people’s lives. It does, in fact, impact local forms of government. It does, in fact, impact and did, in fact, impact the formation of this country. It was the economic Balkanization of the States following the revolution during the Articles of Confederation that led to the need for the Commerce Clause to begin with. There are some questions as to whether or not the courts ought to have the power to create a private right of action to enforce it, or whether that should instead have been created by Congress, which we indisputably have the power to do it.
Senator Lee: (48:55)
Now, if you and in fact if all of you now regard this as sufficiently uncontroversial, then we ought to do it. Let’s run a Dormant Commerce Clause bill together, and we’ll incorporate at least the anti-discrimination wing of the dormant Commerce Clause jurisprudence and make it law once and for all, rather than just a judicial creation. I’d love to do that. The point is this one does matter too. It’s just it hasn’t yet become the subject of political tugs of war based on fear-mongering, based on fundraising by politicians in both parties. And yet there are a lot of similarities there, but this is what we’ve reduced the courts to. And yes, this is their seat. This is the American people’s seat. That’s why we have elections. Those elections in 2014 and 2016 and 2018 that I mentioned matter. We’ve got the authority to do this. We’ve got historical precedent on our side, and we’ve also got the Constitution and the best nominee I’ve seen in a long time. Thank you.
Lindsey Graham: (50:04)
Senator Leahy: (50:05)
Mr. Chairman, thank you. There’s been so much talk about precedent. I think the day will come when the history books are going to use Senator Durbin’s comments about precedent. I certainly think that he stated it as well as I’ve ever heard it stated. We also have another precedent. We have another precedent, and that is senators have always kept their word. Certainly the first thing I was told by the democratic and the republican leader when I came to the Senate was senators keep their work. When I think about what the Republican leader, and Mr. Chairman, even though we’ve been friends a long time, I think about what you said as your reasons for delaying any vote on Merrick Garland. I wish you had kept to what you said then. You haven’t.
Senator Leahy: (51:18)
Now, the committee may not be [crosstalk 00:18:22] Judge Barrett, but we’re now officially through the looking glass, as if for ramming through confirmation hearings just two weeks after Judge Barrett’s nomination and less than three weeks before the election amid a pandemic affecting committee members wasn’t enough of a sham. We’re now proceeding to advance a nomination before the hearings are even concluded, before we even have a chance to ask the nominee all of our questions. Many senators submitted questions. Of course, she she’d answer them. I guess we’re going to volts before we hear those answers. We haven’t even had a chance to hear from all the witnesses this committee deemed necessary before we voted, and apparently before we’ve even reviewed all of Judge Barrett’s record, as records of her undisclosed speeches and materials continue to pour in. I think there was a half a dozen or more last night.
Senator Leahy: (52:34)
All of those were admitted from our questionnaire, suggesting that Just Barrett intentionally failed to disclose all these records in the committee, but normally we have enough time to then go back and find ones that they did fail to. What I’m actually suggesting is the mad rush program has predictably come up with that. So there is no reason why these deficiencies can’t be cured. There’s no reason why this nomination can’t be delayed. If President Trump wins reelection in a couple of weeks, we’ll then take up Judge Barrett’s nomination in January. That process would be legitimate. This one is not. In fact, this process is a caricature of illegitimacy. The fact that we had a nominee before Justice Ginsburg was even buried in order to jam this nomination through before the election. That’s a mark on the United States Senate. It’ll be a mark of a process of callous political power grab.
Senator Leahy: (53:56)
Now, it’s no secret why President Trump is so desperate to install Judge Barrett before the election. President Trump is always one to say the quiet part out loud, often very loudly. He said he expects his nominee to side with him in any election related dispute. He’s made it impossible for America’s not to question Judge Barrett’s impartiality if she has to vote on such a case as a justice, and so I find it incredibly disappointing she’s declined to commit to recuse herself from any election-related dispute. If she decides in the president’s favor in any election related dispute, it’s going to cause serious harm to both the court and indeed our democracy. A judge should integrity of either in such jeopardy. I worry about what is happening in these processes, that we are going to diminish the respect that all Americans should have for our federal judiciary, and it gets even worse.
Senator Leahy: (55:17)
Republicans have another horse in the race: their lawsuit to strike down the Affordable Care Act on November 10th. The president and the Republican attorneys general not just want to strike down some of the ACA, they wanted to strike down all of it. Almost every Republican on this committee is joined in those briefs. Republicans on this committee have tried for years to overturn the Affordable Care Act, both in Congress and the courts, something that so many millions of Americans with preexisting conditions worry about. But now they think they have an opportunity with Judge Barrett. Certainly President Trump has said that’s what’s expected. She’s repeatedly criticized the constitutionality and legality of the laws. She’s never defended it, and she’s been very clear, very outspoken about it, so that’s why we’re here today.
Senator Leahy: (56:24)
I think Republicans see an opportunity to wildly swing the balance of the court for decades, instead of having a court where both Democrats and Republicans could look at it and think it’s going to be even-handed. I’ve voted for more Republican judges since been in the Senate than probably anybody on this committee. I believe in an even-handed federal judiciary. I don’t believe in a president of the United States backed by Republicans in the U.S. Senate saying we’re going to say which way a court is going to go. In fact, that’s why Republicans have gone back on their word about giving the American people a voice when President Obama nominated the eminently qualified Judge Merrick Garland 10 months before election. Not 10 weeks. 10 months before an election. Merrick Garland, a person who many Republicans who served on this committee said they would vote for until Republican leader told them to shut up, and that’s why Republicans are diminishing the committee and the Senate into a mindless rubber stamp now.
Senator Leahy: (57:50)
There’s really no way to gloss over how wrong and base this process is. The damage inflicted in the wake of this outrageous power grab is going to be considerable, perhaps even irreparable, both to the USA and to the federal judiciary. It doesn’t have to be this way. This doesn’t have to be the story of Judge Barrett’s nomination. That’s what Republicans have chosen. Certainly, you could have waited til the election was over and then gone for it, but in their pursuit of raw power that drive to deprive millions of Americans the basic healthcare protections, Republicans are willing to shred every principle this place once stood for. I always thought of the Senate as being the conscience of the nation. We’re a violation of the conscious. I see what for what it is. The American people, I hope, will too. Thank you.
Lindsey Graham: (58:54)
Thanks, Senator Leahy. Anybody else? Senator Blumenthal.
Senator Blumenthal: (58:59)
Thank you, Mr. Chairman.
Lindsey Graham: (59:00)
I’ll make sure everybody gets to speak.
Senator Blumenthal: (59:04)
Since it’s my emotion, I’m going to ask to speak for a second time if I may.
Lindsey Graham: (59:08)
Senator Blumenthal: (59:09)
Thank you, Mr. Chairman. I’d like to have a roll call vote on this motion, because I think it is so serious. The motion is.
Lindsey Graham: (59:21)
Do you want it now, or you want people to speak?
Senator Blumenthal: (59:24)
I’d like to allow everyone to speak who would like to speak, and I thank you for this opportunity. There are very few written rules around here. The most important rules are the unwritten ones. The most important of those rules is you keep your word. We all know that the United States Senate works, and our democracy really works because people keep their promises. Members of this committee, on the other side promised when Merrick Garland’s nomination was given no hearing, no vote, members would not even meet with him that never would a Supreme Court nominee be considered during an election year. You are breaking that word, and with all the rhetoric about precedent and history and everything else and about the wrong direction that the Senate is going, in essence, you’re taking another step in that direction.
Senator Blumenthal: (01:00:38)
We sought on our side to bring into this room real people who would be affected by this nomination. We couldn’t bring them to the hearing room as witnesses. We couldn’t have them be present here because we are in the midst of a pandemic, and we should be dealing with that health crisis instead of considering the nomination of someone who has said in effect that our present health law should be struck down, but we put them in the room here and we saw their faces and voices. Natalie Barden, whose brother was killed in Newtown and who wants common sense, sensible gun violence prevention laws that this nominee has indicated. She’s antithetical to upholding. Kristen and Michael Song, whose son perished as a result of the lack of safe storage of a firearm, and who wants a safe storage law, Ethan’s Law, nationally. Veterans who want emergency risk protection orders so that their friends and fellow veterans will not commit suicide because they should have weapons taken away if they’re going to use them to commit suicide.
Senator Blumenthal: (01:02:19)
I wish I had a nickel for every time. I’ve heard this term, “elections have consequences.” We all know elections have consequences. What we are seeing here is an exercise of just raw political power. You’re moving ahead with this nomination because you can, but might does not make right, and the American people put us here to do what we think is right, and in your hearts, you know that what’s happening here is not right. It’s not normal, so the real people eventually will judge us history will haunt this raw exercise of political power that threatens to strike down protection for people with pre-existing conditions, including now COVID-19 as well as heart disease, asthma, cancer. About half of all Americans, at least half the people in Connecticut, 1. 5 million, 130 million across the country suffer from those pre-existing conditions. Their lives are at stake, and that’s why I brought into this room Connor Curran, who suffers from a disease that would have killed him by now without the Affordable Care Act.
Senator Blumenthal: (01:03:49)
But the most important message from Connor Curran was what he wrote to this nominee, Amy Coney Barrett. He said, “Doctors taken oath: ‘First, do no harm.’ Can you take that oath?” Same question might be put to us. First, do no harm. Can we take that oath? So I hope that we will recognize my colleagues will recognize that delaying this nomination is the right thing to do here. We’re talking about moving ahead on it before we’ve even finished the hearing. We haven’t heard from those witnesses who are going to comment on the qualifications of this nominee, and yet we’re talking about moving ahead.
Speaker 2: (01:04:45)
Mr. Chairman, would the senator yield to a question?
Senator Blumenthal: (01:04:50)
Well, I’m going to be finished in about a minute.
Speaker 2: (01:04:54)
Would you yield to a question when you’re finished?
Senator Blumenthal: (01:04:56)
And then I’d be happy to yield at that point. I just close by saying there’s more information that’s coming out every day. As I mentioned, CNN disclosed last night additional statements and speeches and talks, which is one of the reasons why I made this motion. There’s more to be learned here. We have an opportunity and an obligation to scrutinize this nominee for a lifetime appointment to the highest court in the land, and what’s really insulting to the nominee is the president has in effect said he wants to put her on the court as a result of this rush process so she can decide his election. She refused to commit she would recuse herself from sitting on that case, and that eventually will do grave harm to the court itself to leave that question unanswered for the American people. And as we know, and she said it …
Senator Blumenthal: (01:06:03)
And as we know, and she said it, the orders of the Supreme Court are not self-enforcing. Supreme Court has no armies, no police force. Its authority depends on the trust and faith of the American people, in its legitimacy. I revere the Supreme Court. I was a law clerk there. I’ve argued cases in front of it, including both Justice Scalia and Justice Ginsburg. Both gave me an equally tough time, but I trusted that they were going to take a position based on the law. We do grave damage to the Supreme Court by politicizing it in this way. And so I asked my colleagues to vote, aye, on this motion and delay indefinitely, the proceedings on this nominee.
Sen. John Kennedy: (01:07:01)
Now would the senator yield a question, Mr. Chairman? Senator, you know how much I respect you. I appreciate that. I know you know that. But you just accused me of breaking my word. I want to know how you’ve reached that conclusion. When did I promise, in representing the good people of the state of Louisiana, that I would not vote on a Supreme Court nomination when a president, any president, brought it before me, as a member of this committee? I’ve read the Constitution. I know you have. I’ve listened to your eloquent questions for three and a half years here. The Constitution is unaffected by the electoral calendar when it deals with filling a Supreme Court nomination. So when have I broken my word, not to vote on this nominee?
Senator Blumenthal: (01:08:08)
If I may respond, Mr. Chairman?
Sen. John Kennedy: (01:08:10)
Yes. That’s a legitimate question.
Senator Blumenthal: (01:08:13)
Senator Kennedy, I never said you made that promise. I never said any specific member of this committee, but I can name some names. And I wasn’t going to do so, but I think the record will confirm that the chairman, in effect, made that commitment. And no disrespect to anybody on this committee-
Sen. John Kennedy: (01:08:34)
Well, the chairman can defend himself. But I heard you say, Richard, that the Republicans on this committee have broken their word, and I take that seriously because of my respect for you. Are you alleging that I’ve broken my word?
Senator Blumenthal: (01:08:48)
I am not saying that you, personally, broke your word. I’m saying that any of the members of this committee, or of the Senate, and there are others… And I don’t think we should be personal in this committee meeting. The fact of the matter is, and you know well that there were numerous statements at the time that Merrick Garland was denied a hearing, was denied a vote, was denied even meetings, that it was improper to have this nomination go forward during an election year. That was nine months, not 30 days. And this committee is voting less than three weeks before the election. The full Senate will vote days, literally, days before November 3rd. And right now, Americans are voting. We are in the midst of the election. Americans are, in effect, going to the polls in more than 11 states. Probably, it’s now more than 15. So I am just saying that the commitment was made during last year, and I’m asking the members of this committee to abide by that commitment.
Sen. John Kennedy: (01:10:14)
But you’re not saying that I made that commitment?
Senator Blumenthal: (01:10:17)
I’m not saying you, personally, did.
Sen. John Kennedy: (01:10:19)
That’s what I wanted to clear up. Thank you, Senator.
Lindsey Graham: (01:10:22)
Senator Blumenthal, I do not take personally you using what I said, any of you. That’s all fair game. Just look at everything I said, because in August of this year, I said, “If there’s an opening, we’ll see what the market will bear after Kavanaugh.” Because up is down and down is up. So that’s what I said also, but nothing personal. Senator Hirono.
Sen. Amy Klobuchar: (01:10:47)
Mr. Chairman, I have 15 quotes from 15 Republican senators saying that the election-
Lindsey Graham: (01:10:53)
Sen. Amy Klobuchar: (01:10:53)
… should decide. I will put them on the record, if I could.
Lindsey Graham: (01:10:55)
Absolutely. Without objection. Senator Hirono.
Sen. Chris Coons: (01:10:58)
Thank you. Mr. Chairman, I do associate myself with the remarks of my Democratic colleagues as to the legitimacy of this hearing. Mr. Chairman, you noted that Ruth Bader Ginsburg had tracks, as to her position on important issues. You also noted that Elena Kagan had tracks. And of course, I note that Republicans have voted over 70 times, or at least 70 times, to either constrain or repeal the Affordable Care Act. The tracks of this nominee are that she will strike down the ACA. Those are hers tracks. So thank you for not hiding that from the American people, as they worry about their health care in the middle of a pandemic. As for the lifeline you tossed Judge Barrett about severability to save the Affordable Care Act, that is a smoke screen. She didn’t invoke severability when she criticized CJ Roberts for, as she put at stretching the limits of the constitution to uphold the Affordable Care Act. If CJ Roberts had followed her reasoning, he would have voted to strike down the Affordable Care Act. We all know that severability is a canon of construction. And the counter to that is, just as the Trump and the Republicans are arguing in the Supreme Court, nothing in the Affordable Care Act can be severed, so as to sustain it. And that is why we are so concerned why she’s being rushed in this process. Thank you.
Lindsey Graham: (01:12:51)
You. Senator Coons, then Booker, then Feinstein, and anybody over here.
Sen. Chris Coons: (01:13:02)
Thank you, Mr. Chairman.
Sen. Cory Booker: (01:13:03)
Mr. Chairman? Sorry, Mr. Coons. Could you just redo that order and say Coons, Feinstein-
Lindsey Graham: (01:13:09)
Sen. Cory Booker: (01:13:09)
Nope. Coons, Feinstein, Booker.
Lindsey Graham: (01:13:12)
I’m sorry. Coons, Booker, Feinstein. Cornyn will be after Senator Coons.
Sen. Chris Coons: (01:13:18)
I’m happy to defer to the ranking member if [crosstalk 01:13:20].
Lindsey Graham: (01:13:27)
I’m happy to stay here until one o’clock October the 22nd, but… All right.
Sen. Dianne Feinstein: (01:13:34)
No. If I may, Mr. Chairman?
Lindsey Graham: (01:13:38)
Yes ma’am, you may.
Sen. Dianne Feinstein: (01:13:38)
I really listened carefully to these comments. And I must say that the argument for really giving due regard to this nominee, I think, has been cogently made on our side. And I would hope that the Republican side would listen to that. These are lifetime appointments. They last for decades. And so what is done here will affect policies long after our lifetimes end. In the time I’ve been on this committee, Mr. Chairman, the 25, 26 years, there’s never been a situation quite like this. And I think history will regard us well if we are considered, and diligent, and patient. And I see no need to charge ahead. And I just wanted to say that. Thank you.
Lindsey Graham: (01:14:41)
Thank you. Senator Cornyn.
Sen. John Cornyn: (01:14:49)
Mr. Chairman, during my opening statement, I quoted James Manley, who we all remember worked for Harry Reid for many years. And he was quoted as saying on this nomination, “The groups want blood. Democrats on and off the committee want a real fight.” Well, I guess this is what passes for a real fight. I’m really struggling to find out and to understand why Judge Barrett is such a threat to them. Is it because they’ve become accustomed, that when they lose elections and they lose votes in the Congress, they depend on the courts to bail them out. That’s not what judges should be doing. Judges should be trying to determine what the intent of Congress is, because we’re the ones that are accountable to the voters. They are not, by definition, by the fact they have lifetime tenure.
Sen. John Cornyn: (01:15:58)
That’s why it’s so important to have judges like Amy Coney Barrett. She’s doesn’t want to substitute her opinion for ours. She wants ours to prevail. She wants majorities respected. That’s the American system. So I think a lot of the arguments, and maybe it’s just so obvious, nobody needs me or wants me to say it, but all these straw men they keep raising just tacitly. Well, the unspoken accusation against Judge Barrett is she’s going to violate her judicial oath, that the sort of integrity and character she demonstrated here, that somehow she will leave that all behind in order to accomplish a result in a future case she hadn’t even heard. It’s just absurd. So I think the regret, the disappointment of our Democratic colleagues is real, because they’ve become accustomed to the Supreme Court being policymakers and being a body that bails them out if they can’t win the election or win a vote in Congress. So I understand their disappointment, but I think their loss is the American people’s gain.
Lindsey Graham: (01:17:29)
Sen. Chris Coons: (01:17:32)
Thank you, Mr. Chairman. Today, my constituents from Delaware are asking the same thing they’ve been asking for weeks. In this particular context, the question is, and I got one just while we were sitting here, why is the Senate Judiciary Committee meeting to race through your process and this confirmation, when the Senate itself isn’t in session? I was delayed a few minutes this morning because I went and got tested for COVID by the Senate physician so that I can return with some confidence to my family this evening that I haven’t picked it up while here. The Senate of the United States is not in session because we have an outbreak amongst senators. And I am not confident we’ve provided for senators, for staff, for the White House, frankly, for the American people. My whole state is just 900,000 people. And how many people filed new unemployment claims last week? Almost exactly 900,000 people. My hope is that we will get back to the work of trying to deliver the relief small businesses, Americans, those unemployed, those infected, desperately need.
Sen. Chris Coons: (01:18:43)
But I’ve worked hard to bring the voices of real Delawareans into this discussion, because it’s easy to miss in the seemingly abstract conversations about things that really matter to lawyers like the Dormant Commerce Clause. And I look forward to our long delayed debate on that, Senator Lee. Conversations about originalism, precedent, stare decisis, about what is or isn’t the precedent either for this committee, for confirmations, or for the Supreme Court can leave the millions of Americans struggling in the middle of this pandemic and the recession, that I would argue is made worse by the bungled mishandling of this pandemic by our president, a little cold. I am gravely concerned, Mr. Chairman, that you and the majority are standing on the edge of a precipice of pushing through a nominee in a way you, yourself, said was unthinkable two years ago in the last days of the last quarter of this presidency.
Sen. Chris Coons: (01:19:48)
We are 19 days from the presidential election and majority of states are voting. People stood outside for 10 hours in Georgia yesterday. That’s the good news. I think they are that determined to vote. We heard repeatedly from the nominee that she has no agenda. But I’ll tell you the agenda of President Trump in choosing her, and the agenda of the Republican majority in racing forward with this confirmation, that is clear. My colleague from Illinois said that this process has turned into something that your average American has real trouble discerning what’s going on. We keep asking earnest questions. The nominee keeps declining to answer them in any substantive or meaningful way. And we do have to ask ourselves, “Is there any path towards getting a confirmation process in this body back onto a real and a rational footing?” But we are about to have a vote in this committee, and that’s why I will support my from Connecticut’s motion, where we haven’t even heard from the last panel of witnesses today. We haven’t even heard responses to the questions for the record. This is an unprecedented context and with unprecedented speed. You don’t convene a Supreme Court confirmation hearing in the middle of a pandemic while the Senate’s on recess, while voting has already started in a presidential election in a majority of states, because we are simply concerned about abstract ideas or the neutral application of law. And you don’t mangle and mishandle my predecessor and attribute to him some rule, and then restate that rule as the McConnell rule, and then ignore it. And then state, “Up is down and down is up,” when nothing could be further from the truth. This is not on the level. You don’t go against your own promise after you’ve already claimed, as a matter of high principle, justices shouldn’t be confirmed in election, and after you’ve already blockaded a centrist, competent, highly qualified nominee for exactly that reason, because you solely care about methodology. This is about the president’s disastrous response to a pandemic and a decade long unfilled pledge, embodied in one party’s platform to overturn protections for a majority of Americans in the middle of a pandemic. As my Democratic colleagues and I have been working, laboring to lay out, there will soon be, if Judge Barrett is confirmed, a hard turn to the right on the Supreme Court. A change in methodology, a change in approach, a change in principle that will have practical, pragmatic, and lasting consequences for a majority of Americans. After studying Judge Barrett’s record, I’m convinced she would come to the Supreme Court with a deeply conservative, originalist philosophy and a judicial activism with regards to precedent that would put numerous longstanding rights the American people have come to rely on and hold dear, in nearly every aspect of modern life, at risk. Simply put, I believe she will open a new chapter of conservative judicial activism, unlike anything we’ve seen in decades.
Sen. Chris Coons: (01:23:11)
First, Judge Barrett, as justice Barrett, may well cast the deciding vote to overturn the Affordable Care Act, with potentially disastrous consequences for a majority of Americans. Everyone watching at home has heard my colleagues say that for the last 10 years their top priority has been repealing the ACA. And every single Republican Senator on this committee has talked publicly, repeatedly about their desire to get rid of that law at some point previously. So, too, has President Trump. Despite their best efforts, they have so far failed to do so here, and in my view, have failed to advance a credible alternative plan for how to deal with preexisting conditions and give them lasting protection. So now I think the last best shot for accomplishing this goal is at the Supreme Court. That’s where Judge Barrett comes in.
Sen. Chris Coons: (01:24:02)
Has she conceded during our questioning or exchange? Judge Barrett has written in no uncertain terms, she thinks Chief Justice Roberts got it wrong in his ruling, upholding the law against a constitutional challenge. She wrote that article in early 2017, and then months later found herself on President Trump’s shortlist for the court. Meanwhile, the Trump justice department has joined a challenge to the ACA that is back in front of the Supreme Court to be argued just a few weeks from now on November 10th. President Trump and his administration are arguing, in no uncertain terms, the court must tear down the entire law. Now, my colleagues have said, this is fear-mongering. This is baseless political theater. But to anyone who thinks this challenge is farfetched, just read the brief. Just read the brief filed by the solicitor general of the United States, or the one filed and co-signed by 18 Republican attorneys general. Most importantly, consider what our president, himself, has said about what he expects from his judicial nominees.
Sen. Chris Coons: (01:25:11)
He lashed out at Chief Justice Roberts over and over for his decision upholding the Affordable Care Act, and pledged as a candidate his nominees would do the right thing and overturn the law. It isn’t just the ACA that’s on President Trump’s agenda for the Court. He’s made clear he wants to overturn the ACA. He wants to overturn Roe versus Wade. And most concerningly to me, he has repeatedly made statements that he expects his nominee to hand him the election if there’s a dispute in the courts. As I made clear in my exchange with Judge Barrett, I am not suggesting that she’s engaged in any inappropriate conversations or commitments with the president. That’s not at all what I’m saying. It was the president’s conduct, himself, that has put this issue in front of the American people. His repeated undermining of the credibility, safety, and security of our election should be alarming to all of us. His refusal to commit to a peaceful transfer of power and to respect the results of the election should give all of us concern. Those of us who pledged to uphold and defend the Constitution under all circumstances. There was-
Lindsey Graham: (01:26:15)
I’ve been told… I’m sorry.
Sen. Chris Coons: (01:26:17)
If I could…
Lindsey Graham: (01:26:18)
Sen. Chris Coons: (01:26:18)
Lindsey Graham: (01:26:19)
No. Keep going.
Sen. Chris Coons: (01:26:20)
I will not speak after this. This is it.
Lindsey Graham: (01:26:21)
No. That’s fine. I’m sorry. I didn’t mean to interrupt you.
Sen. Chris Coons: (01:26:24)
Judge Barrett also steadfastly refused to answer whether she believed Scalia was correct in his criticism of Griswold versus Connecticut, a case decided when I was just two years old, that protects the right to use contraceptives in the privacy of one’s home, and is an important landmark case because it is the anchor, as we all recognize, to the line of substantive process jurisprudence. Chief Justice Roberts, Justices Alito and Kavanaugh were willing to say Griswold was right. So it left me concerned. And then as I laid out yesterday, what truly concerns me more is her approach to precedent. Precedent’s been called the foundation stone of American law. It gives predictability, stability to it. And as I walked through yesterday, I’ve concluded that Judge Barrett is even more willing than Justice Scalia to overturn precedents with which she disagrees, and made clear that justices should feel free to overturn cases that they believe were wrongly decided.
Sen. Chris Coons: (01:27:21)
Which if she deeply holds the originalist philosophy she’s espoused, may mean that dozens and dozens, in fact, as I detailed in a chart yesterday, more than 120 cases, long-settled in many cases, may be at risk of reconsideration. And they will cover, yes, healthcare, yes, privacy, but education, consumer protection, marriage equality, criminal justice, a range of cases a majority of Americans believe are long settled. Last, as to President Trump’s most critical expectation or expressed wish. I was concerned that Judge Barrett would not specifically commit to recusal in the event there is something arising from this imminent presidential election. I think nothing could be more challenging to the role of the Supreme Court in our national life.
Sen. Chris Coons: (01:28:12)
And I urge my colleagues, first, to consider seriously, the Senator from Connecticut’s motion and to delay the final stages of this process until after the selection. But equally, if not more importantly, to think about the moment we are on, because if this election in some way is interfered with, does not go appropriately, I think that our democracy itself is at risk. So at the very least, to be clear, I thought nothing was stopping Judge Barrett from making a commitment to recuse herself, given what President Trump has said and was gravely concerned she did not. So Mr. Chairman, I’ll conclude, I will not be voting to confirm Judge Barrett to the Supreme Court, but I frankly think we should not be taking this vote. We should not be proceeding today. We should instead be turning to the urgent business of protecting the American people, and ensuring the safety and security of our election, and keeping our word. Thank you.
Lindsey Graham: (01:29:07)
Sen. John Kennedy: (01:29:11)
I want to associate myself with part of Senator Coons remarks. I think I’ve been here less an amount of time than anybody on this committee. You are the most interesting people I’ve ever been around, and I mean that. The Senate is. I haven’t met a dummy yet. I realize that might debatable by some. I haven’t met a single solitary member of the Senate that doesn’t want what’s best for America. And I certainly include you in that number, Senator Coons. And I think we ought to do something about the economic consequences of the coronavirus. I don’t know why bad things happen to good people, but it has happened to the world. And it has had public health consequences and private health consequences, but also economic consequences. And Chris, I’m not trying to score political points here. I mean what I’m about to say. Senator McConnell’s going to put a coronavirus bill on the floor next week. And I understand that many of my colleagues, on both sides of the aisle, think it’s not a perfect bill.
Sen. John Kennedy: (01:30:42)
So if you’ll talk to Senator Schumer, I’ll talk to Senator McConnell. People on this side of the aisle that have more influence than I have can talk to Senator McConnell. Let’s agree to proceed to that bill, and let’s debate it and start the amendment process. And let’s debate and decide. I didn’t come up here for delay and [inaudible 00:01:31:15]. And I know you didn’t even do that either, Chris. And let’s go try to pass a bill next week. I think everybody on this committee tests their assumptions against the arguments of their critics. That’s one of the reasons that I find you all so interesting. I’m willing to consider Democratic amendments to that bill. So let’s do it. But it will require my Democratic friends to vote to proceed. So I’m asking you, respectfully, vote to proceed on that bill, and then let’s start amending it. And let’s pass something. Thank you, Mr. Chairman.
Lindsey Graham: (01:31:59)
Sen. Cory Booker: (01:32:04)
Mr. Chairman, let me apologize up front for this metaphor I’m about to use. I know it will insult the two vegans on the committee, me and Senator Cruz. But I believe-
Sen. Ted Cruz: (01:32:17)
Point of personal privilege.
Sen. Cory Booker: (01:32:19)
Oh, I’m sorry, Senator Cruz.
Lindsey Graham: (01:32:20)
It may be one step below the Houston Astros thing.
Sen. Cory Booker: (01:32:23)
I just want the people of Texas to know the truth. He is a closet vegan. I recognize, Mr. Chairman, that this goose is pretty much cooked, and I love the body postures of all of us around when people are talking. And when people are saying things very original, as Mr. Kennedy just said, folks look up and listen. And when folks are repeating what others consider to be the routine partisan posturing, I see lots of heads go down to the cell phones. So let me try not to do anything routine, with the hope that my colleagues will listen to me. First of all, just with the hearing, I do think some of the things that you said earlier are right. This was a hearing conducted with decorum and professionalism. I think that’s something I think all of us can at least agree to. We had some criticisms going back and forth. I found things that were troubling to me during this hearing.
Sen. Cory Booker: (01:33:23)
I tried to elicit from, in both private conversation and in the hearing, just conversations about what I think is one of the issues that we don’t speak enough about in the United States of America, which are issues of race. I have been extremely proud of the fact that we are a Senate now, that has more Blacks serving on it than at any time in history. And I’ve been really grateful to watch my Senate colleagues often on the floor of the Senate, my colleague, Tim Scott, speak about the truth about race. And literally, the last time I saw him do it, get applause from his Republican colleagues about his experience as a United States Senator, and I have my own, who has had experiences with Capitol police here that have been stunning. I think that many of my colleagues to recognize this goes on. And here we are in the backdrop of what I think is, and somebody can correct me or fact check me, what I think is the largest period of demonstrations in the history of United States, greater than any in the Civil Rights Movement.
Sen. Cory Booker: (01:34:25)
Of millions of Americans, often in predominantly, if not all, white towns coming out to protest issues of race. And I was surprised that in this backdrop, issues of race are so important to the Supreme Court, that we had a nominee who couldn’t even talk to a law review article that they wrote. And I heard Senator Kennedy ask her yesterday, which made me smile, as you often do, my friend, asked her if she’s a racist. Clearly she’s not a racist, nor is anybody who is serving in this committee. But it’s not out of the bounds to ask questions about this, being that in the lifetime of my family, there have been members who’ve been affected by Supreme Court decisions in pretty profound ways. And it’s issues that are going to continue to come up. I did find it also surprising [crosstalk 00:29:11]… What? That’s fair. Thank you, sir. And I did find it surprising that this conversation, and again, I’m new to this committee and this conversation about, does a nominee answer questions that reflect their philosophy?
Sen. Cory Booker: (01:35:26)
I thought there were a lot of questions that were inbounds, that she refused to answer. And I think that that is the erosion of precedent that’s going to continue in this committee. We are now heading to a period where the instructions that every Supreme Court nominee is going to get is just to not answer things. To not being able to answer whether you believe in the peaceful transfer of power. I just found that stunning. I really did. I don’t think we could ask anybody in the United States Senate, House members, high school history teachers, if they don’t think that that’s something somebody should do. So I found that surprising. But I’m not here to rehash comments I made in my opening about why I think this is wrong to do this. What I’d rather do, and Chairman, I think you’re probably going to send me a note or flowers. But tomorrow will be the seven year date, to the date, of when I got elected to be in the United States Senate. And thank you. Senator Kennedy, maybe you’ll be the only one that marks my-
Lindsey Graham: (01:36:29)
Would just a congratulations be sufficient?
Sen. Cory Booker: (01:36:33)
I appreciate that.
Lindsey Graham: (01:36:35)
I mean that. And before you go on, this is pretty contentious time. And Twitter’s blocking a story about Biden, and the world is turning sideways and all. And we’ll talk about that in a minute, Senator Cruz. But there would be no First Steps Act if Senator Booker, at a very crucial point in time, decided to find common ground. If they ever write the history of that bill, I’ll attest to the fact that when it was about to fall apart, you kept it together. You kept your eye on the prize. I just wanted to say that.
Sen. Cory Booker: (01:37:11)
And I’m going to attest to the fact that you and other colleagues, just yesterday, after I did talk about race, had a conversation with me about the work that we can still do together on those issues. I came to the Senate. People said it was impossible for us to pass at least some of the legislation that Dick Durbin, on our side, really led to get things done. I’m really proud of some of the work we’ve done in this committee. So I just want to, actually, talk about that moment I came to the United States Senate. I was elected on the 16th. My dad had just died six days earlier. And then I came down here, grieving. My staff knew right before Vice-President Joe Biden swore me in, to take me over to see John Lewis, which was one of the more moving moments of my life. And my mom, in tears, walks me to be sworn in on the floor of the Senate, which was Halloween, October 31st. Now what happened about a week later, was the rules of the Senate were changed, which I’ve heard a lot about from colleagues, about breaking the Senate.
Sen. Cory Booker: (01:38:15)
Imagine me, and again, I literally, was a little bit naive to the functioning of the Senate. And this is not a exaggeration. It’s the truth. I got sworn in, and we had a vote. And I didn’t know how to vote. I thought there was a button you press, and I’m looking around for it. And Menendez has to tell me, just raise your hand and say, “Aye.” And so next thing you know, I have senators coming to me to lobby me about changing a rule that surprised me, because the word they were using was nuclear option. And so that got my attention. Why the heck are we doing something called the nuclear option? I thought I was going to be coming here to talk about treaties, to try to prevent nuclear proliferation or nuclear catastrophe. And I had senators who I really respect, people I saw as statesmen and women, coming to me and explaining to me about what they saw was the loggerhead, the choke hold that…
Sen. Cory Booker: (01:39:03)
… about what they saw was the loggerhead, the chokehold that Leader McConnell was putting on the ability of Senator Obama to put executive positions and judges on. Now, I just recently heard Mitch McConnell brag about that, that he was able to choke the number of judges that Obama was able to put on to give President Trump a historic number of vacancies to fill.
Sen. Cory Booker: (01:39:29)
Now, I’m not actually bringing this up as a point of argument because I’ve listened to this hashed out, both sides claiming injury and claiming harm in whatever the debate is. I believe I did the right thing with my vote, but I think I have heard the grace on both sides in private conversations, with people telling me that this body is a Senate and telling me that this committee is terribly broken, and remarked to me that we are tumbling towards a very bad reality. That’s what concerns me right now in this moment, that this is another moment where we are, as an institution, eroding our norms to the point that we all are bemoaning it, everybody I have heard on both sides of the aisle bemoaning it.
Sen. Cory Booker: (01:40:20)
But this isn’t happening in an isolated vacuum. It’s not. It’s happening in a time of terrible crisis for our country. Sometimes I walk around the halls of this Senate, and I feel like we’re that frog in boiling water that’s been having the temperature turned up so slowly that they barely notice it and are barely remarking on it. I just want to ask my colleagues to think about what is happening in the context of American history right now. Some of you all may not agree with me, but I’ve had enough Republican colleagues of mine that have been willing to speak out about some of these things that are really troubling to me.
Sen. Cory Booker: (01:40:57)
I saw a president of United States bringing in military and turning gas and rubber bullets on peaceful protestors in Lafayette Park, and for what? There are people of faith, all of us around here. To hold up a Bible in an awkward way for a photo-op. That was such a stunning moment that I watched a lot of what I call statespeople in America come out strongly against it, including some people in this body on the Republican side. It pushed, as I mentioned earlier, General Mattis, who we all know believes in the restraint of power in your voice, to come out and call the president of the United States a danger to our democracy. That is stunning.
Sen. Cory Booker: (01:41:46)
But it doesn’t stop there. I don’t know if I can point, there are better students of history on this body than I am, of a president before an election doing things to compromise the outcome and saying, “If I don’t win clearly, unequivocally, this election is rigged.” That’s something that in the presence of my lifetime, George Bush, Ronald Reagan would never have said.
Sen. Cory Booker: (01:42:12)
For those of you who don’t think it’s problematic, we have armed militias now gearing up. Go to the website armyoftrump.com. First of all, that worries me just because I like my conservatives, because usually pick things that we all agree on, calling organizations Freedom or Liberty, or bringing in those words. This is the cult of a personality, not defend the United States, not make a fair election. This is the army of Trump. Am I exaggerating when we literally are sitting here while we have people like our governor of Michigan, where people are putting together plots to abduct elected officials in the United States of America? Does this not trouble us?
Sen. Cory Booker: (01:42:57)
The things that are going on are stunning to me. A president saying stand back and stand by to an organization that’s just doing that, standing by. We have literally in this moment a president refusing to unequivocally talk about the peaceful transfer of power. All of these things are troubling. I know some people want to cast them in partisan ways, but even the Constitution mentions the census and mentions the Post Office. Heck, both of those institutions of our democracy are under attack right now.
Sen. Cory Booker: (01:43:36)
I see these signs all around us that should make all of us concerned and worried about what’s going to happen 19 days from now. I never thought I would be having rational conversations with Republican colleagues of mine, far be it just members of my family, that I am fearful of the violence that might happen around an election, that I am literally having conversations on my side of the aisle of people saying, what are we going to do to protect the polls in black communities from what happened in 1981 in New Jersey, where, again, people with arms came in to try to undermine people voting? This is actually going on in America. These are real conversations by rational people. This is not partisan rhetoric. This is facts, but it happens on something deeper. And I was so moved by somebody, I texted them, on the Republican side who talked about these deeper issues of our country.
Sen. Cory Booker: (01:44:35)
I really appreciate what you said, Senator Kennedy, because we do have common virtue. We do have common values. We do have common cause. The lines that divide us are not nearly as strong as the ties that bind us in this country. I still believe that. Call me earnest or call me naive. I still believe that. But right now we are doing tit for tat. I hear people calling us extreme, when there are times I sit back, I remember in 2016 that many of my colleagues were talking about a Supreme Court seat and saying, “Let’s just keep it open,” people on this committee. “Let’s just keep the Supreme Court open for four years if Hillary Clinton wins.” There are things that have been going on on both sides.
Sen. Cory Booker: (01:45:24)
But while we are doing this, we are failing as a body to lead in a time of crisis. We have food lines in America that haven’t been seen since the Great Depression. We have unemployment rate in America that we haven’t seen since the Great Depression. New business starts have been going down for years, and now we have small businesses closing at rates we have not seen since the Depression. Farms. I don’t know if anybody heard, but I ran for president last year, and there are farms… We are seeing the closure of the independent American farms at a rate we haven’t seen since farm crises in the ’80s and before.
Sen. Cory Booker: (01:46:08)
Let me go more, because I know that my colleagues are concerned with this. Life expectancy in America is going down. In every other industrial nation, it’s going up. You want to talk about national anxiety? Rates of depression, clinical depression are going up, usage of antidepressants going up. There are all of these signs in this country that we, the great experiment in democracy on the planet Earth, on all comparison… In fact, Mr. President… Mr. Chairman, I’m sorry. You ran for president and lost, sir.
Lindsey Graham: (01:46:42)
Way behind what you were able to do.
Sen. Cory Booker: (01:46:45)
Thank you. Thank you very much.
Lindsey Graham: (01:46:46)
Not even a T-shirt in my case.
Sen. Cory Booker: (01:46:47)
But I just want to point out to you, when I came to this body from being an executive, I really was interested in data. What’s the data? I had dashboards when I was mayor of my city that showed me how successful we were doing.
Sen. Cory Booker: (01:46:59)
I looked at the dashboards for America that I could find. One of them was the World Economic Forum that keeps data on the competitiveness of our democracies. We were number one in my dad’s era on every one of their metrics and every one of their measures, the quality of our infrastructure, education of our children, even the research and development. We were the innovators of the planet. Well, now we’re not even in the top 10 for most of their measures.
Sen. Cory Booker: (01:47:28)
China has just built 18,000 miles of high- speed rail. Have we done a major infrastructure bill? The busiest rail corridor that goes through Delaware and New Jersey from Boston to Washington, D.C., runs half an hour slower than it did in the ’60s. We used to have the most college graduates per capita. We’re not in the top 10 anymore. Trying to compete in the global knowledge-based economy when other countries… R&D even. We are drafting off of the investments we made. We’re not the number one public-private investments in R&D country anymore, and in research intensivity.
Sen. Cory Booker: (01:48:04)
I can go on, but I want to come to this conclusion. We are failing as a body to serve the purposes to which we all care, and the best we can do is blame each other. Each of us are participating in the erosion of this body. This is just yet another example of that. People here think this is wrong, and I’m not just saying people on our side because, again, the words of my colleagues think this is wrong, and this goose is cooked.
Sen. Cory Booker: (01:48:35)
But God, I’m appealing right now. I’m one of these folks that, during times like this, I’d be heckling back and forth with my friends that I text on the other side of this aisle, and I hope they’ll never make those public. But I am appealing right now that we’ve got to find a way to stop this. The only thing that heals this body is what I call a revival of civic grace. Somewhere along the line, there’s going to be a moment. It’s coming. I think it’s long past that there has to be acts of heroism when it comes to extending grace.
Sen. Cory Booker: (01:49:12)
My friend Mike Lee, I quote you, the only person I’m going to personalize quote, except for Kennedy, who yesterday talked about how good of a tight end I was and athlete I was. But I’m going to quote my friend just because I know you won’t take personal affront to me quoting you. You said, “We had the authority to do this.”
Sen. Cory Booker: (01:49:29)
I know you are a student of history as am I. Some of the greatest acts in American history are when people had the authority to do something and they showed the restraint of power and didn’t use that authority. This is one of those moments where that is the kind of grace that can stop the tumbling of this institution further towards what I think will be a real constitutional crisis and will help us to begin to rise together to save this nation.
Sen. Cory Booker: (01:50:04)
We are now at a point with what we’re about to do here, unless my colleagues’ resolution somehow passes, where we are going to set another firm foot to the erosion of our institutions. I’m telling you right now, I hear rational people telling me things like the first time in Supreme Court history that we had the most anti-democratic Supreme Court, because they bring up facts like, ” Hey, the president wasn’t elected with a majority, and confirmed by a Senate that has 10 million less votes, the majority than the minority, that these are anti-democratic things that are happening. We have to stop them.” I’m hearing that, as just in the same way that my colleagues on the other side of the aisle, when Hillary Clinton seemed to be the winner, were talking about trying to do things to stop. What has to stop is that.
Sen. Cory Booker: (01:50:55)
I’m going to end with my favorite point. You may have had these moments. It was in Iowa, Chuck Grassley. I was running for a stage in a town hall, and I’m about to leap up on the stage and a big guy sees me. Mr. Chairman, I’m a big guy, former All-American football player. Older I get, the better I was, man. And I’m about to jump up on that stage, and a guy stops me and says, “Dude, I want you to punch Donald Trump in the face.” I looked at him, deadpanned, and I said, “Dude, that’s a felony.
Sen. Cory Booker: (01:51:29)
I am nowhere near… I’m a shadow of the kind of grace that John McCain showed when somebody was eviscerating Barack Obama personally. He grabbed the microphone from him and talked about how good of a family person Barack Obama was, not the easy vilification that we often do. I can’t imagine for the life of me the current president doing something like that.
Sen. Cory Booker: (01:51:52)
What this body has to rise to, I hope it’s now, is to understand that what this nation needs from us is that grace. I’ve failed in this, but this has come the moment in American history that we need to show it. I pray that my colleagues, two of them, will join the other two Republicans and stop this from happening, to show that grace now, because this is a point when millions of Americans are suffering and hurting and losing the very idea of what it means to be an American in terms of the dream and the promise of this country. This is the moment that this nation needs from this body actions of grace.
Lindsey Graham: (01:52:32)
Thank you. Senator Whitehouse, if it’s okay, say whatever is on your mind, I would like to dispose of the motion. We do have people that want to give us their view about the judge. If it’s okay, after Senator Whitehouse, we’ll take up the vote.
Sheldon Whitehouse: (01:52:52)
Mr. Chairman, I’ll try to be brief. Let me first say how surprised I am that Senator Kennedy finds us all interesting because I have operated under the principle for many years that everybody from Louisiana is more interesting than I am.
Sheldon Whitehouse: (01:53:13)
I would like to associate myself, just for the sake of time, particularly with the remarks of Senator Blumenthal, who spoke in a way that I thought was very true and eloquent and does not need my repetition. I do want to suggest to colleagues that the rule of “because we can,” which is the rule that is being applied today, is one that leads away from a lot of the traditions and comedies and values that the Senate has long embodied. There are Republican members on this committee of whom I am very fond, but don’t think that when you have established the rule of “because we can,” that should the shoe be on the other foot, you will have any credibility to come to us and say, ” Yeah, I know you can do that, but you shouldn’t because of X, Y, or Z.” Your credibility to make that argument at any time in the future will die in this room and on that Senate floor if you continue to proceed in this way. I hope that that is not the case, but please don’t think that there are two separate rules, that when there is Republican majority, the rule is “because we can,” and when there is a Democrat majority, the rule is, “oh, no, you can’t do it that way.”
Sheldon Whitehouse: (01:55:16)
With respect to Senator Cornyn’s questions about why we are concerned, let me associate myself with the description that Senator Coons gave, which I thought was very thorough and complete. I would summarize it by saying we are concerned because of what you have said and what other senators have said in briefs and in public pledges about the Affordable Care Act, about Roe v. Wade, about Obergefell. We are concerned about these things because of what President Trump has said, the man who made the choice and told us that that choice was being made specifically to cover him in an election litigation and to terminate health coverage under the ACA. He’s your president. Why should we not take him at his word? You don’t answer that question.
Sheldon Whitehouse: (01:56:23)
Your party platform, the Republican Party platform, calls for judges to reverse the Obamacare cases, the Affordable Care Act, that is, Roe v. Wade, and Obergefell, the gay marriage case. We didn’t say that that’s what your plan was. You said that that’s what your plan was. You said in your party platform that you were going to do it through your judicial appointments. That’s how you reverse decisions. You put that threat in play.
Sheldon Whitehouse: (01:57:10)
I’ve got to say, I’ve got an awful lot of Rhode Islanders who depend on the Affordable Care Act. I’ve got a lot of Rhode Islanders who want to have some autonomy over the decisions about their body that Roe v. Wade protects. I’ve got a lot of Rhode Islanders who either are married to someone of their sex or wish to be and planned to be, or have friends and family members whom they love who either are married to somebody of their same sex or wish to be.
Sheldon Whitehouse: (01:57:54)
When you put those rights in play by putting that threat in your party platform, you have no standing to criticize us for taking it seriously. That’s what you said. Reverse the Obamacare cases. Reverse Roe v. Wade. Reverse Obergefell.
Sheldon Whitehouse: (01:58:21)
The last thing that I will say is that while we express our dismay and concern about the significant and disturbing procedural anomalies that are happening in this nomination, all of the last three nominations have been characterized by significant and disturbing procedural anomalies, all three, the Gorsuch episode, the Kavanaugh confirmation, and now this one. There is a commonality to that that is very disturbing, and that suggests the presence of outside forces and interests that are driving these conspicuous, disturbing anomalies.
Sheldon Whitehouse: (01:59:28)
Last weekend, I was at home preparing for this, sitting at a desk with papers all out around me trying to assemble my thoughts. I was in a room with the windows closed, and I couldn’t feel any breeze. We have pretty good windows in my house, and the wind doesn’t blow through them. But I could look out the window. We look out over a pond, and I could see the water on the pond rippling as the wind blew across it. I could see the trees outside bending as the wind blew through the trees. I could see the rushes along the edges of the pond flipping back and forth as the wind blew through them. I didn’t need to feel the wind to know that the wind was blowing outside because the clues were obvious.
Sheldon Whitehouse: (02:00:28)
The clues are obvious that something is happening behind all of these significant and disturbing procedural anomalies. And I, for one, intend to find out exactly what has been going on. It has been going on behind front groups and using anonymous money. That was not, I don’t think, what the founding fathers had in mind when they stood up this robust democracy, that big, sneaky interests would hide behind phony front groups and use secret money to get their way. That’s not what generations of Americans fought and bled and died for. I make a commitment here that I will spend every effort that I must to get to the bottom of why these anomalies have taken place. Thank you, Chairman.
Lindsey Graham: (02:01:28)
Thank you. I thought the greatest anomaly I’ve seen was Kavanaugh, but there’s no use looking backward. Let’s look forward.
Lindsey Graham: (02:01:36)
The motion by Senator Blumenthal to adjourn the hearing past the election is now before the Senate, and the clerk will call the roll.
Chuck Grassley: (02:01:47)
John Cornyn: (02:01:47)
Mike Lee: (02:01:53)
Ted Cruz: (02:01:57)
Ben Sasse: (02:01:57)
Josh Hawley: (02:01:57)
Thom Tillis: (02:02:02)
Joni Ernst: (02:02:04)
Mike Crapo: (02:02:05)
John Kennedy: (02:02:05)
Marsha Blackburn: (02:02:11)
Dianne Feinstein: (02:02:11)
Speaker 3: (02:02:14)
Aye by proxy.
Richard Durbin: (02:02:16)
Sheldon Whitehouse: (02:02:18)
Amy Klobuchar: (02:02:20)
Chris Coons: (02:02:21)
Richard Blumenthal: (02:02:22)
Mazie Hirono: (02:02:22)
Sen. Cory Booker: (02:02:24)
Speaker 4: (02:02:32)
Aye by proxy.
Lindsey Graham: (02:02:35)
Mr. Chairman, the votes are 10 yeas, 12 nays.
Lindsey Graham: (02:02:40)
The motion is not agreed to. The business meeting will conclude, and we will now move to our first panel. Thanks to my colleagues for saying what was on your mind in a very eloquent way. We will now move on to panel one, the ABA panel.
Chuck Grassley: (02:03:02)
Mr. Chairman, could I have a point of personal privilege?
Lindsey Graham: (02:03:04)
Yes, for any particular person?
Chuck Grassley: (02:03:07)
Well, he’s not on the panel. He’s sitting behind it now, but he’s been so active there.
Lindsey Graham: (02:15:34)
(silence). The hearing will come to order. Senator Feinstein will be back in a second. We’re not going to start until she does. I appreciate our witnesses’ patience. The committee did its business, and I appreciate the way in which it was conducted, the respect and the sincerity. And we will now be moving forward. I’ll wait until Senator Feinstein gets here, but I’ll do the introducing. Our panel includes members of the American Bar Association who are responsible for rating judicial nominations. We have three. Mr. Randall Noel, partner, Butler Snow, Memphis, Tennessee. Ms. Pamela Roberts, partner, Bowman and Brooke, Columbia, South Carolina. Welcome. And I will allow Senator Grassley now to introduce Mr. Brown.
Senator Grassley: (02:16:31)
Yeah, Mr. Brown, as far as I know, will probably not be testifying, but he’s counselor to these people that are. But I want to recognize him for a more important reason. First of all, a little bit of background. David Brown is here in his capacity, he’s vice chair of the American Bar Association Standing Committee on the Federal Judiciary. He’s a partner in a very prestigious De Moines law firm, Hansen, McClintock, and Riley. I’m pleased that he’s able to be here today. And I welcome him and all the other witnesses to the committee.
Senator Grassley: (02:17:11)
But in regard to his hard work, I think, as I know him personally, and I’ve heard him say everything that these members that are on the Standing Committee of the Federal Judiciary that review judges, both district, circuit court, and Supreme Court, the time that they have to put in to do it. So I know how diligent he is. I don’t know whether I can tell you exactly whether he’s been doing it for 20 or 30 years, but at least half the time that I’ve been on this committee, which would be 20 years out of 40 years, I’ve known him to work very diligently at this. And if he’s example of the lawyers of this country that serve that same capacity interviewing candidates that are nominated by the president of the United States, they all work very, very hard.
Senator Grassley: (02:18:10)
So I want to thank David Brown for his hard work. And as he counsels these people today, they probably don’t need any counsels, but he’s there to help them if they need it. And welcome him and everything else. And since we’re getting started two hours late at this and I had made other plans, Mr. Chairman, I want to have permission to put my questions in the record.
Lindsey Graham: (02:18:37)
Permission granted, and I appreciate your patience. You’re invaluable to the committee today.
Senator Grassley: (02:18:41)
Lindsey Graham: (02:18:44)
Senator Coons, while we’re waiting on Senator Feinstein, do you think it’d be appropriate for them to start or you want to wait? Is that okay? Let’s just wait a minute. Is that okay? Okay. I’ve been told it’s okay. Mr. Noel.
Mr. Randall Noel: (02:19:08)
Thank you, Chairman Graham and thank you Ranking Member Feinstein for the opportunity to be here today. It’s an honor and a privilege.
Lindsey Graham: (02:19:18)
Need to … The red button. Can somebody help Mr. Noel?
Mr. Randall Noel: (02:19:39)
Are we on now? All right.
Lindsey Graham: (02:19:40)
We’re on now.
Mr. Randall Noel: (02:19:42)
Thank you, Chairman Graham and Ranking Member Feinstein for the opportunity to be here today on behalf of the American Bar Association’s Standing Committee on the Federal Judiciary. It’s an honor to be here to explain to you our process and our evaluation of Judge Barrett. We gave Judge Barrett a rating of well-qualified, as you know, our highest rating. For 67 years, the Standing Committee has conducted thorough nonpartisan, nonideological, impartial peer reviews of all nominees to the federal courts. We assess the nominee’s integrity, their professional competence, and their judicial temperament.
Mr. Randall Noel: (02:20:32)
The Standing Committee does not propose or recommend nominees. Our sole mission is to evaluate the professional qualifications of a nominee to serve on the court. And we do that through a comprehensive, thorough, fair, and independent peer review, the only one they will get. That entails reaching out to hundreds of lawyers and judges, bar association leaders, deans, and academicians, and others across the country who have personal firsthand knowledge of the nominee’s professional endeavors that touch upon the nominee’s integrity, professional competence, and judicial demeanor. And the information that’s given to us by these individuals is done under strict confidence to ensure that the comments that we receive are candid, open, and honest.
Mr. Randall Noel: (02:21:32)
I’m joined by Pamela Roberts of South Carolina, who was the lead evaluator for this nominee. And we were assisted by our Standing Committee members, a team of stellar lawyers from across the country who were handpicked and whose practices are in the litigation arena and who are deeply committed to the work of a strong judiciary. As you know, David Brown joins us here today. And I can tell you that all of these people work diligently to do what we always aspire to do. And that is to provide a fair and independent rating within the time frame that’s established by the Senate Judiciary Committee. To be a nominee to the Supreme Court, one must possess exceptional professional qualifications. And as such, our investigation of a nominee to the Supreme Court is much more extensive than that for other federal courts. In addition to the usual approach of having a lead evaluator conduct and report on the nominee, every member of the committee from his or her own circuit conducts a separate evaluation, which is given to us.
Mr. Randall Noel: (02:22:48)
And second, while the committee members review the writings and opinions of the nominee, we engage academic reading groups. Here, we had two academic reading groups, distinguished professors from the law schools of the University of Mississippi and Belmont University, and a third professional reading group that included Supreme Court practitioners and former clerks, among others. There were 34 members of these reading groups. They read the opinions and the writings of the nominee, and they independently evaluated factors such as the judge’s analytical abilities, clarity of writing, knowledge of the law, application of the law to the facts, harmonizing a body of law, reasoning, scholarship, and the ability to communicate effectively.
Mr. Randall Noel: (02:23:45)
And our committee also had the benefit of evaluating Judge Barrett in 2017 when then Professor Barrett was nominated to the Seventh Circuit Court of Appeals, where she now serves as judge. And we interviewed Judge Barrett for over three and a half hours, Ms. Roberts and I, and we received additional information from her in the interim. The Standing Committee concluded that Judge Barrett’s integrity, judicial temperament, professional competence met the very high standards for appointment to our Supreme Court. Our rating of well-qualified reflects the consensus of her peers that know her best. Thank you, Chairman Graham and Ranking Member Feinstein for your staff’s accommodating us to be here today. They were professional and gracious at every turn. Thank you.
Lindsey Graham: (02:24:44)
Thank you. Before we turn to Ms. Roberts, there’s contention on our side about the ABA at times, but as chairman, I always have considered the input to be important, even when I disagree with it. And during my time, we’ve continued the practice of ABA input, and I hope those who follow me will do so. Ms. Roberts.
Ms. Pamela Roberts: (02:25:12)
Thank you, Mr. Chairman. Thank you, Mr. Chairman, Ranking Member Feinstein, and members of the committee. As my colleague just introduced, I’m Pamela Roberts, and I’m the lead evaluator for the nomination of Judge Amy Coney Barrett to sit as a justice on the Supreme Court of the United States. It is my honor to be here today and to present the testimony on behalf of the committee’s evaluation of Judge Barrett’s professional qualifications.
Ms. Pamela Roberts: (02:25:48)
Let me first start with what the committee did not do. We did not base our rating on or seek to express any view regarding Judge Barrett’s philosophy, political affiliation, or ideology. And we also did not solicit information as to how Judge Barrett might vote on specific issues or cases that might come before the Supreme Court. Rather, the Standing Committee’s evaluation of Judge Barrett is based solely on the comprehensive, nonpartisan, non-ideological peer review of the nominee’s integrity, professional competence, and judicial temperament.
Ms. Pamela Roberts: (02:26:36)
In evaluating integrity, we consider the nominee’s character and general reputation in the legal community, as well as the nominee’s industry and diligence. Judge Barrett has earned and enjoys an excellent reputation for integrity and outstanding character. Judges and lawyers alike uniformly extolled the nominee’s integrity. We can recount a few comments such as, “She’s incredibly honest and forthright. She’s exactly who you think she is. Nothing about her is fake. She is good, decent, selfless, and sincere. She is an exemplar of living an integrated life in which her intellect, integrity, and compassion weave the different threads of her life together seamlessly.” On the basis of these and many, many other laudatory comments and analysis we received, excuse me, through our comprehensive evaluation, the Standing Committee concluded that Judge Barrett possesses the integrity required of a well-qualified rating. Professional competence encompasses such qualities as intellectual capability, judgment, writing, and analytical abilities, knowledge of the law, and breadth of experience. A Supreme Court nominee must possess exceptional professional qualifications, including an especially high degree of legal scholarship, academic talent, analytical and writing abilities, and overall excellence. Judge Barrett’s professional competence exceeds these criteria. In our evaluation of Judge Barrett’s professional competence, the members of the standing committee not only evaluated the reports mentioned by my colleague by the practitioners and the academic reading groups, but then went further to obtain the views of lawyers, academics, and Judge Barrett’s judicial peers.
Ms. Pamela Roberts: (02:28:58)
Descriptions of her intellect are captured with comments such as these. “She is whip smart. She’s highly productive, punctual, and well-prepared, a brilliant writer and thinker. She’s quite pragmatic. Judge Barrett is an intellectual giant with people skills and engaging warmth. An amazing student.” This came from a professor, obviously. “Without question the smartest student I’ve ever taught.” But put it simply, one said, “The myth is real. She is a staggering academic mind.” Given the breadth, depth and strength of the feedback we received, the Standing Committee concluded that Judge Barrett had demonstrated professional competence to exceptional and sufficiently outstanding to be rated well-qualified.
Ms. Pamela Roberts: (02:29:55)
In evaluating her judicial temperament, the Standing Committee considers a nominee’s compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias, and most of all, commitment to equal justice under the law. The following comments provide insight into her demeanor as a jurist. “She’s always willing to be helpful, engage with others on a topic, even when she has a different philosophy. When she writes a dissent, she is collegial. She’s an efficient judge. She is always prepared. At oral argument, she asks insightful questions. There’s never a hint of sarcasm in her questioning. She is also a good listener. She has a calm, scholarly temperament.” Judge Barrett has demonstrated stellar judicial temperament in all settings and meets the standard of well qualified.
Ms. Pamela Roberts: (02:30:57)
In conclusion, Judge Barrett meets the highest standards of integrity, professional competence, and judicial temperament. It is the opinion of the ABA Standing Committee on the Federal Judiciary that Judge Barrett is well-qualified to serve as an associate justice of the Supreme Court of the United States. Thank you so much.
Lindsey Graham: (02:31:19)
Well, thank you. And I, to the extent that the American people could hear what you had to say, I think it would be reassuring. In terms of the Bar Association’s taking the time and effort to do something this important, we’re all grateful. Were either one of you involved in the Justice Kagan Sotomayer confirmation process?
Ms. Pamela Roberts: (02:31:42)
Mr. Randall Noel: (02:31:43)
I was not.
Lindsey Graham: (02:31:44)
Okay. The reason I mention that, the same things that were said today about Judge Barrett were also said about Justice Sotomayer and Kagan, and quite frankly, every other nominee that I’ve had the pleasure to associate with on the Judiciary Committee. In terms of the three areas that you evaluate, how much time and attention went into this, Ms. Roberts?
Ms. Pamela Roberts: (02:32:17)
On behalf of the entire committee?
Lindsey Graham: (02:32:20)
Ms. Pamela Roberts: (02:32:21)
Thousands of hours.
Lindsey Graham: (02:32:23)
Okay. Mr. Noel, are you in agreement with the summary given by Ms. Roberts?
Mr. Randall Noel: (02:32:31)
Yes, indeed. Yes. Yes.
Lindsey Graham: (02:32:35)
In terms of both of you are active in the practice of law?
Ms. Pamela Roberts: (02:32:42)
Except for the last two and a half weeks.
Lindsey Graham: (02:32:44)
Yeah. Well, I can’t show favoritism here, Ms. Roberts, but I know you, and it’s good to have somebody without an accent come to the committee. Mr. Noel, are you involved in the practice of law?
Mr. Randall Noel: (02:32:59)
I’m a full- time practicing senior partner in my law firm, yes.
Lindsey Graham: (02:33:02)
Okay. And you have people’s personal interest and property rights in your hands as a lawyer, is that correct?
Mr. Randall Noel: (02:33:10)
I do, yes.
Lindsey Graham: (02:33:12)
Same for you, Ms. Roberts?
Ms. Pamela Roberts: (02:33:14)
Lindsey Graham: (02:33:14)
You’re very well known in our state, by the way. Simply put, would both of you feel comfortable going before Judge Barrett?
Mr. Randall Noel: (02:33:26)
Ms. Pamela Roberts: (02:33:27)
Lindsey Graham: (02:33:29)
Think your folks would get a fair shake?
Mr. Randall Noel: (02:33:31)
No doubt in my mind.
Ms. Pamela Roberts: (02:33:34)
I would agree with that.
Lindsey Graham: (02:33:36)
Thank you all. You’ve done the country an invaluable service. Thank you. Senator Feinstein.
Senator Feinstein: (02:33:45)
Well, I’d like to say thank you too. One of the things that I’ve observed over my tenure on the committee is really how extraordinarily valuable the ABA has been. And as a non- lawyer, particularly to me. So I just wanted to be able to say a word of thanks to you. And I hope you keep it coming. We very much welcome your advice, your counsel, and your legal professionalism. So thank you.
Ms. Pamela Roberts: (02:34:19)
Senator Feinstein: (02:34:27)
That’s it. Thank you.
Lindsey Graham: (02:34:29)
Thank you. I have a list of letters supporting the nomination of Judge Barrett I would introduce for the record in this folder. Senator Cornyn.
Sen. John Cornyn: (02:34:39)
Mr. Chairman, I have a letter from the Independent Women’s Voice in support of the nominee. I’d ask unanimous consent that it be made part of the record.
Lindsey Graham: (02:34:46)
Without objection. On our side, would anybody like to say something? You don’t have to. Would anybody like to ask questions? Senator Kennedy.
Senator Kennedy: (02:34:59)
I just wanted to thank you for all your hard work and the time you spent on this.
Mr. Randall Noel: (02:35:06)
Lindsey Graham: (02:35:07)
Senator Coons, anyone?
Sen. Chris Coons: (02:35:09)
Yes, if I could. Just two questions for you. One on a broader issue of the ABA and its role in confirmation, and then another on diversity in the federal courts. President Trump’s named 10 judicial nominees who were subsequently rated by the ABA as not qualified. And by comparison, not a single judicial nominee of the Obama administration was rated as not qualified. And these ratings have led the Assistant AG for the Office of Legal Policy to write in an editorial that the ABA evaluates nominees of Republican presidents more harshly than those of Democratic Presidents. Does the ABA take political considerations such as this into account when it provides this committee with ratings?
Mr. Randall Noel: (02:35:53)
Thank you, Senator Coons. Our evaluations are done in an apolitical, neutral, impartial way. We do not take into account political affiliation, religious preference, philosophy, or personal views. We focus solely on the professional qualifications to serve.
Ms. Pamela Roberts: (02:36:17)
And if I might add, Senator, that under the two administrations, there was a different practice. Under the Obama administration, the ABA process actually goes forward before going to the Senate Committee. It addresses problematic nominees before they’re formal nominees.
Sen. Chris Coons: (02:36:49)
Correct. One of my repeatedly stated concerns has been racing forward with nominees before we get your input on qualification, which I tend to rely on. One other question, if I might. By nearly every metric, the Trump administration’s judicial nominees have been among the least diverse of any president in generations. He’s made 50 nominations to the circuit courts, not one of whom was Black. In fact, over his 200 nominations, about 85% have been white and only 25% have been women. Yesterday, in response to a question from Senator Booker, Judge Barrett could not name a single book, study, or law review that in any way addressed racial discrimination in this legacy in American law. I’m not suggesting in any way that that’s disqualifying. I’m simply saying that at a time when such books are best sellers, at a time when this central challenging issue for the United States and for our legal system about how to address, recognize, combat the legacy of racial discrimination, I just wondered if you could briefly speak to the importance of diversity on the bench and in the legal community more broadly.
Mr. Randall Noel: (02:38:02)
Senator, we’re not here to speak for the American Bar Association. We are the independent body of the Standing Committee on the Federal Judiciary. But in terms of this evaluation and the work that we did, I can share with you that of the hundreds of people that we reached out to who confided in us and gave us their very candid views, we didn’t hear a hint of any concern by anyone that this nominee suffers from some kind of malady in the terms of discrimination.
Sen. Chris Coons: (02:38:41)
Let me be specific and clear. I was not intending to imply that in any way. Her failure to respond to Senator Booker’s question yesterday with a specific example, I did not mean to imply suggested any bias. Just, it led to me to question whether or not having broader diversity on our courts would bring into the decision-making role those who bring personal insight and experience, and whether or not all who serve on our bench and in Congress should be more aware of this challenge facing our nation.
Ms. Pamela Roberts: (02:39:15)
If I may, Senator, I just would remind the committee that there are two questions in the Senate Judicial Questionnaire that the nominees complete that do address diversity. One is those to membership of any organization or club that might discriminate. And the other question goes to a view of diversity and is usually followed up in the face-to-face interview by the evaluator and the nominee. And so there is some intentional discussion about those important issues.
Sen. John Cornyn: (02:39:58)
Sen. Chris Coons: (02:40:00)
Sen. John Cornyn: (02:40:01)
Lindsey Graham: (02:40:02)
Yes. Senator Cornyn.
Sen. John Cornyn: (02:40:04)
Mr. Chairman, it strikes me that the nominee understands diversity, appreciates diversity. She’s got two children she adopted from Haiti. So I don’t think she needs to have anybody preaching to her about the importance of diversity. Her own family is racially diverse. And I think it speaks volumes about her character and her husband’s character for what they have done in terms of adding to their already large family by adopting these two children from Haiti.
Lindsey Graham: (02:40:37)
Okay. Anybody else? Senator Cruz.
Senator Cruz: (02:40:40)
Mr. Chairman, I wanted to thank both of the witnesses for the hard work. I know you put a lot of time into these interviews. And thank you for the thoroughness with which you approached the job. And thank you for relaying to the committee what you found from those interviews. I also wanted to enter into the record a letter from First Liberty, which is a legal organization that defends religious liberty, in which they support the confirmation of Judge Barrett and say in particular that, “We’re confident that Judge Barrett will protect the religious freedoms and constitutional rights of all Americans.”
Lindsey Graham: (02:41:13)
Without objection. Thank you both for the input to the committee, for all the time and effort. I think it’s invaluable to the committee and the country. And tell General Rives that I said hello. He was my boss when I was in the Air Force. Thank you very much. You’re dismissed.
Mr. Randall Noel: (02:41:29)
Ms. Pamela Roberts: (02:41:30)
Lindsey Graham: (02:41:31)
Our second panel.
Lindsey Graham: (02:41:32)
Lindsey Graham: (02:41:32)
Take your time.
Lindsey Graham: (02:41:32)
Senator Feinstein: (02:44:43)
So we’ll recess for how long?
Lindsey Graham: (02:44:49)
Senator Feinstein: (02:44:50)
Lindsey Graham: (02:44:51)
Yeah, 30 minutes probably. We’ll try to get it done as soon as we can. Are we ready there? Okay. Thank you.
Lindsey Graham: (02:45:01)
Okay, thank you. So here’s what I’ll do. We have eight witnesses, six are virtual, two are with us in person, four supporting the nomination, four opposed. And we will do it in the order that I call out, but just be patient with me. Dr. B-H-A-T-T-I, Care Free Medical, Lansing, Michigan. Are you with us?
Dr. Farhan Bhatti: (02:45:33)
Yes, sir. I’m here.
Lindsey Graham: (02:45:34)
How do you say your name, sir?
Dr. Farhan Bhatti: (02:45:37)
Bhatti is my last name.
Lindsey Graham: (02:45:39)
Okay, thank you, Dr. Bhatti. The Honorable Thomas Griffith, retired judge, U.S. Court of Appeals for the District of Columbia, Washington, D.C. Judge, are you with us?
Judge Thomas Griffin: (02:45:51)
Lindsey Graham: (02:45:53)
Thank you. Ms. Kristen Clarke, President and Executive Director, Lawyer’s Committee For Civil Rights Under Law, Washington, D.C. Ms. Clarke?
Ms. Kristen Clarke: (02:46:04)
Lindsey Graham: (02:46:05)
Thank you. Professor Prakash, P-R-A-K-A-S-H, James Monroe Distinguished Professor of Law, University of Virginia School of Law Charlottesville. Professor, are you with us?
Professor Prakash: (02:46:22)
Lindsey Graham: (02:46:24)
Oh, okay. I’m sorry. I apologize. Did I get your name right?
Professor Prakash: (02:46:28)
Very much so.
Lindsey Graham: (02:46:29)
Oh, good. Thank you sir. Ms. Crystal Good, Charleston West Virginia. Ms. Good, are you with us?
Ms. Crystal Good: (02:46:38)
Yes, Chairman, I’m here.
Lindsey Graham: (02:46:39)
Okay. Miss Amanda, R-A-U-H-B-I-E-R-I. Associate Miller Canfield, Grand Rapids, Michigan.
Ms. Amanda Rauh-Bieri: (02:46:51)
Yes, Chairman, I’m here.
Lindsey Graham: (02:46:53)
How do you say your name, ma’am?
Ms. Amanda Rauh-Bieri: (02:46:56)
Lindsey Graham: (02:46:58)
Thank you. Ms. Stacy Staggs, Literal Lobbyists, Charlotte, North Carolina.
Ms. Stacy Staggs: (02:47:07)
Yes, Chairman, I’m here.
Lindsey Graham: (02:47:08)
Thank you. And last is Ms. Laura Wolk, is that right, ma’am?
Ms. Laura Wolk: (02:47:13)
Lindsey Graham: (02:47:13)
Thank you. From Washington D.C. So Dr. Bhatti, will you please lead us off. You each have five minutes and then be subject to question by the Committee. And thank you all for taking the time to attend and give us your input.
Dr. Farhan Bhatti: (02:47:34)
Well, thank you, Chairman Graham, and thank you to this committee for welcoming me here. My name is Dr. Farhan Bhatti. I’m a family physician practicing in Lansing, Michigan, and the CEO of a nonprofit, Carefree Medical, which provides medical dental and optometry care to low income, under insured, and uninsured individuals. I’m also a board member at Michigan State Lead for the Committee to Protect Medicare, a national organization of physicians in more than 40 states who want to make sure our patients get the care they need regardless of financial status. Most of my patients are Medicaid recipients, men and women who work two, sometimes three jobs. Because Michigan expanded Medicaid in 2014, under the Affordable Care Act, more than 750,000 Michiganders can now get the treatment they need.
Dr. Farhan Bhatti: (02:48:25)
There are countless stories for my daily work I could present, but I will share just two. The first is a middle aged male who had a long history of uncontrolled diabetes and who recently acquired Medicaid. Since he wasn’t able to afford insulin before getting Medicaid insurance, we tested his blood in our office and found his hemoglobin A1C had risen to 17.5%, when normal is 5.6% or below. An A1C of 17.5 means his blood sugar was averaging 455 milligrams per deciliter. And as a physician, my goal is to have diabetic patients average 150 or less. Blood sugar as high as his if left untreated will almost certainly lead to death. Because of the ACA, I was able to start him on an intensive insulin regimen, and within four months, his blood sugar dropped more than 200 points. The blurred vision he was experiencing significantly improved. His kidney function improved, and he was able to find a job. The ACA literally saved this man’s life.
Dr. Farhan Bhatti: (02:49:40)
Another story I’d like to share involves a patient with bipolar disorder who was doing well and was stable and healthy until she lost her job and her health insurance due to COVID-19. I had been prescribing a medication that worked wonders to keep her mood stable, but without insurance that medication costs more than $1,200 per month, which she simply couldn’t afford. I tried prescribing older, inexpensive, generic medications so she could pay cash for them, hoping we’d find an effective alternative. None of them worked. She developed a severe depressive episode. Her energy and motivation vanished. She gained significant weight because of the side effects of the older, generic medications. She had uncontrollable crying spells and she experienced suicidal ideation. Thanks to Michigan’s expansion of Medicaid as allowed under the ACA, my patient’s suffering ended because we eventually got her enrolled into Medicaid. We resumed the medication she desperately needed, regulated her dopamine and stabilized her mood. She can once again contribute to the economy and support herself financially.
Dr. Farhan Bhatti: (02:50:54)
These are just a fraction of the many positive outcomes of the ACA I have witnessed over the years. Simply put, as a frontline doctor, I witness every day how the ACA has improved, is improving, and will continue to improve the lives of ordinary hardworking people. For those without health coverage, they live in fear that they are only one illness or one injury away from bankruptcy. Medical bankruptcy in this country is in the hundreds of millions of dollars. It breaks my heart. So during a pandemic that continues to kill 1000 Americans each day, people need the ACA and the freedom it provides now more than ever. Without the ACA, insurance companies would be able to discriminate against a new generation of people with COVID-19 related pre-existing conditions, and anyone with a pre-existing condition by refusing to cover them or by raising costs.
Dr. Farhan Bhatti: (02:51:53)
As a family doctor who cares deeply about my patients, I’m grateful to be here today to advocate for them and for all patients in our great nation. And I’m here to urge against striking down this lifesaving law or confirming to the Supreme Court anyone who would seek to do so. As a doctor, I can’t talk with expertise about concepts like originalism or textualism. As a doctor, however, I can talk about the real world harm of ending the ACA to the real life Americans who have to choose between going to a doctor or buying groceries. And as a physician who engages with other doctors across the nation, I share the concern that any judge who opposes the ACA endangers a lifeline that my patients count on to stay healthy, and in many cases, to stay alive. Thank you again for the opportunity to share my patient’s stories with you. Thank you.
Lindsey Graham: (02:52:47)
Thank you, sir. Thank you very much. Judge Griffin.
Judge Thomas Griffin: (02:52:57)
Chairman, Ranking Member Feinstein, and members of the Committee, from 2005 until last month, I was a judge on the U.S. Court of Appeals for the D.C. Circuit. But before that, I spent several years and many long hours in the hearing room where you are now as the nonpartisan Senate legal counsel. I’m appearing to you virtually, but it’s good to be back in a room where I spent so much time working with such great Senators. I’m honored by the invitation to speak in support of the confirmation of my friend, Amy Coney Barrett to the Supreme Court of the United States. As you and the nation has seen during these hearings, Judge Barrett is supremely well-qualified to join the other esteemed members of the court. A recent survey found that over two-thirds of the American people believe that Supreme Court Justices base their decisions primarily on the law and not on politics.
Judge Thomas Griffin: (02:54:01)
In light of that, there’s something deeply disturbing about much of the debate surrounding judicial nominations in our nation, many political leaders and pundits assume that a judge we’ll cast their vote based just on partisan preference. Such explanations typically made for short-term political gain do much harm. They undermine public confidence in an independent judiciary, which is the cornerstone of the rule of law. The rule of law is a fragile possibility that should be more carefully safeguarded by our leaders. I agree with the Chief Justice, “We do not have Obama judges or Trump judges, Bush judges, or Clinton judges,” he said. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Judge Thomas Griffin: (02:54:52)
Having served 15 years on the D.C. Circuit alongside judicial appointees of every President from Carter to Trump, I have seen firsthand that judges can and do put aside party and politics in a good faith effort to correctly interpret the law. Justice Kagan made the same point at her confirmation hearing. She flatly rejected the idea that difficult cases turn on “what’s in a judge’s heart.” Instead, as she put it with her characteristic wit, “It’s law saw all the way down.” That is precisely the type of jurist Judge Barrett has been. In Price versus City of Chicago, she ruled against pro-life litigants who challenged an ordinance that barred them from approaching women near abortion clinics for the purpose of leafleting, protesting, or counseling. Even though there were substantial arguments that the ordinance violated the First Amendment under an aggressive reading of recent Supreme Court precedent. Judge Barrett joined an opinion that followed binding precedent and upheld the ordinance. She displayed the same impartial approach in rulings that allowed the first executions in 17 years to proceed, regardless of her personal views on the death penalty. As constitutional scholar Jonathan Adler pointed out, “These decisions certainly are not in line with church teaching and further suggest that Judge Barrett applies the law whether or not that coincides with her personal beliefs.” Judge Barrett brings something else to her work as a judge that is especially vital to our nation at a time when many regard those with different views as enemies, not friends. In the words of Judge Lawrence Silverman, my friend, and distinguished former colleague on the D.C. Circuit for whom Judge Barrett clerked, “Amy combined a powerful analytical ability within innate kindness and sense of decency.” The public record makes clear Judge Barrett’s powerful analytical ability. I don’t think we can overstate the importance of her kindness and decency.
Judge Thomas Griffin: (02:57:10)
Judge Barrett’s colleague at Notre Dame, O. Carter Snead, says of her, “She genuinely seeks to understand other’s arguments. Time and again, I have seen her gently reframe a colleague’s arguments to make them stronger even when she disagreed with them.” Professor Lisa Grow Son of Brigham Young University observes, “Amy always welcomes the opportunity to learn more from people whose perspectives differ from her own. She’s always very generous to other people’s arguments.” Finally, while some of the discussion about Judge Barrett’s faith has been tinted with bigotry, some of it comes from a sincere desire to know whether her faith will dictate her decisions as a justice. As a person of faith who served on the D.C. Circuit, let me assure you it will not. The oath that every federal judge must take is intended to transform the citizen into an impartial judge whose loyalty while performing her judicial role is to the constitution and laws of the United States and not to any President, party, or religion.
Judge Thomas Griffin: (02:58:21)
In taking the oath, the judge makes a solemn promise with God as witness that when acting as a judge she will be a different person than when she is not acting as a judge. Robert Bolt’s portrayal of Thomas Moore in A Man For All Seasons captures this point simply and powerfully. “What is an oath,” Moore asks, “but words we speak to God?” In other words, for a person of faith, the judicial oath is a promise to the nation and God that she will not do the one thing her secular critics most fear, reach for outcomes based on her religious worldview. When wearing the robe, there is no conflict between following God and Caesar. It’s Caesar all the way down. I thank you for this opportunity and look forward to any questions that you might have.
Lindsey Graham: (02:59:18)
Thank you, Judge, very much. Ms. Clarke.
Ms. Kristen Clarke: (02:59:22)
Chairman Graham, Ranking Member Feinstein, and members of the Committee, thank you for the opportunity to testify in connection with the Supreme Court nomination of Judge Amy Coney Barrett. My name is Kristen Clarke, President and Executive Director of the Lawyers’ Committee For Civil Rights Under Law, one of the nation’s oldest civil rights organizations. Founded in 1963 at the request of President John F. Kennedy, we turn to the courts to protect the civil rights and voting rights of Black people and other communities of color across our nation. We’ve conducted an exhaustive review of Judge Barrett’s writings, speeches, and decisions during her time on the court. Judge Barrett’s views are far outside the mainstream, and for evidence of this one need look no further than her own words before this committee this week. Judge Barrett would not say whether voter intimidation is illegal though outlawed by Section 11B of the Voting Rights Act and federal criminal laws. Judge Barrett would not concede that voting discrimination still exists saying she could not endorse that proposition, and calling it a very charged issue when questioned about the court’s Shelby County versus Holder decision. Even Chief Justice Roberts, the author of that devastating ruling, noted, “Voting discrimination still exists. No one doubts that.” Judge Barrett would not say whether absentee ballots are essential to voting in the pandemic, calling it a matter of policy on which you can’t express a view. Judge Barrett has left open the possibility that she would participate in cases that may arise out of the election now underway. It’s troubling that she would not recuse herself under these circumstances, and her stance sends a disconcerting message to the 17 million Americans who have voted to date, with millions more to come. These are voters who want their ballots and not An election season court pick to determine the election outcome. Her record reflects the same.
Ms. Kristen Clarke: (03:01:39)
In Kanter versus Barr, she suggested the right to vote deserves less protection than the right to own a gun, and that’s a radical point of view no matter what one’s view of the Second Amendment. In her words, she described the right to serve on juries and to vote as belonging only to “virtuous citizens.” She’s made clear that her judicial philosophy has been molded by the late Justice Scalia, who described the Voting Rights Act as “perpetuation of a racial entitlement.” When asked if she agreed with this, she refused to answer. During these hearings, Judge Barrett has gone to great lengths to distance herself from the reality of voter suppression and voting discrimination that we face today. This should sound an alarm to anyone in our country who cares about protecting voting rights for all Americans.
Ms. Kristen Clarke: (03:02:34)
In this moment, we’re in lower courts fighting efforts to purge voters from the rolls, efforts to shutter polling sites in communities of color, burdensome restrictions such as notary and witness requirements for those casting absentee ballots during the pandemic, and more. In this term, the court will decide a case arising out of Arizona where the issue concerns racial discrimination in voting under both the Constitution and Section Two of the Voting Rights Act. Given Judge Barrett’s unwillingness to recognize the threats that Black people and communities of color face in voting, I’m deeply concerned about how she would handle this case and many other such cases that will come before the court.
Ms. Kristen Clarke: (03:03:19)
A brief word on employment discrimination. Judge Barrett revealed alarming insensitivity to racial harassment in the workplace in Smith vs Illinois Department of Transportation. There, she held that a Black traffic patrol driver was not subject to a hostile work environment even though coworkers frequently subjected him to use of the N word. Judge Barrett concluded that this was an egregious racial epithet, but concluded that this sort of racial hostility was not enough to prove discrimination. This stance is simply incomprehensible. The nomination of Justice Barrett arises at one of the most tumultuous times in our nation’s history. We’re wrestling with a pandemic, protests about unconstitutional policing practices, racial injustice, and more. Our nation deserves a justice who is committed to protecting the hard earned rights of all Americans, particularly our nation’s most vulnerable. For these reasons, the Lawyers’ Committee For Civil Rights Under Law opposes Judge Barrett’s nomination. Thank you.
Lindsey Graham: (03:04:32)
Thank you, Ms. Clarke. Professor Prakash.
Professor Prakash: (03:04:40)
It’s a pleasure and an honor to be with you here today to discuss Judge Barrett. Thank you, Chairman Graham. Thank you, Ranking Member Feinstein and members of the Committee. I had the pleasure of working for the great Senator Alan Simpson over the summer, and so I finally remember this building. We heard the ABA rate the judge as well qualified. I think the only reason why she wasn’t rated higher is that there is no higher rating by the ABA. I think she’s uber qualified. I think, to use a sports metaphor, she’s a five tool athlete. She is brilliant. She’s a tremendous educator. She’s an institutionalist. She’s a role model. And I’ll say finally, she’s an originalist, And I think that’s a good thing. So I’ll briefly go over some of these points and I certainly welcome your questions. With respect to her brilliance, I think her articles reflect a deep appreciation of complex issues, an ability to break down those complex issues in a manner that people can understand. I would point you to her article entitled, The Supervisory Power over the Supreme Court, where she discusses the Supreme Court’s assumption of power to prescribe procedural and evidentiary rules in the 1950s over the inferior courts, and how that is problematic given that Congress has occasionally granted the Supreme Court authority to impose rules on the lower courts. And so it’s an interesting time where she’s basically a nominee to the Supreme Court and criticizing the Supreme Court’s conclusions in this regard. I think her discussion of precedent is very nuanced and I think it reflects a willingness to not overturn the entire constitutional order in order to get things right.
Professor Prakash: (03:06:25)
She properly notes that judges do not need to reconsider precedent in every case, and I think that is utterly in totally appropriate. But don’t just take my word or the word of the ABA. Harvard law professor Noah Feldman has said she’s brilliant, and he also said she’s conscientious. I agree with both of those adjectives. As an educator, you know that she’s won the Teacher of the Year Award three separate times, the Distinguished Professor of the Year Award, and I think this reflects her attention to students, evident care for them, but we must never forget that justices, and, of course, senators are educating the nation about our nations and laws, and I think that she will carry that task off with ease. As you saw during your testimony here, she’s very good at breaking down complex concepts.
Professor Prakash: (03:07:11)
I think she’s an institutionalist and I think that’s reflected in her writing. She cares deeply about America. She does not want to burn the whole place down, and I don’t think she’ll do anything that brings the Supreme Court into disrepute. And I think she has good company, because I think all the justices try their level best, even as they disagree with each other, to understand that each of the justices comes from the right place as senators today discussed. They have the right values and they have the right instincts. She’s a role model. I think Senator Graham has spoken to that at great length and I won’t go into it further. Finally, she’s an originalist. Originalists basically believe that the meaning of the law that matters is the meeting at enactment, not what a judge or an executive branch would make with the law later on. And I’m reminded of the Biden Condition, named after Senator Joseph Biden. You probably have heard of him.
Professor Prakash: (03:08:10)
Senator Biden was disturbed by the Reagan administration’s re-interpretation of the ABM Treaty, and he got this august body to add a condition to the INF Treaty, which said, “The interpretation of the treaty that matters is the interpretation that we jointly had when we consented to your ratification of the treaty.” You cannot reinterpret treaties decades later. That is an originalist argument, and I would argue that’s what every lawmaker wants. Lawmakers craft texts, they get it marked up in committee, they take it to the floor. There might be amendments there. They then take it to the conference committee. There might be amendments there. They bring it back. They spend a lot of time thinking about that language, thinking about the context. And then what they don’t want is some judge or some executive later on twisting that statute, twisting that enactment, to suit some other purposes. And I think the alternative is, of course, the living constitution approach or the living statutory approach.
Professor Prakash: (03:09:13)
But I don’t think that honors you as lawmakers. It really leaves the lawmaking power with the judge or the executive officer. And if you look at our recent history, the living constitution has brought us things like the living Presidency, a Presidency I think that across all parties has acquired powers not granted to it by the Constitution. Think of the war power. Go back and read what Washington and others have said about it. It would shock you. Think about your role in treaties. It’s greatly diminished. So I’ll end with a caution and hope. Originalists and conservatives will be disappointed with Judge Barrett because she will render results that they disagree with politically. That is entirely appropriate. And end with a note of hope. Progressive should be happy because she will give the meaning to the laws that is appropriate at the time that you passed it. And I don’t think that she’s going to use her position to advance her personal or religious agenda. Thank you so much.
Lindsey Graham: (03:10:09)
Thank you, professor. Ms. Good
Ms. Crystal Good: (03:10:14)
Chairman Graham, Ranking Member Feinstein, members of the Committee, thank you for having me. My name is Crystal Good. And I’m a sixth generation West Virginian, a writer-poet, a small business owner, graduate student at West Virginia University, and an advocate for survivors of sexual abuse. I’m the daughter of a White mother and a Black father, and I’m the proud mother of three brilliant children. These identities are all parts of me, but not all of me. Who I am today is only possible because at 16 years old I had access to an abortion. As a minor in a state with a parental consent requirement that access was dependent on a judge, because without a shadow of a doubt, I could not trust the adults closest to me. From the ages of five until I was 15, I was sexually abused by my White stepfather. He wasn’t convicted until 2012, more than 30 years after the abuse began.
Ms. Crystal Good: (03:11:11)
When I told the grown folks in my life, they didn’t believe me at first, and then refused to hold my abuse accountable once the truth was out. Later at 16, while in a relationship that brought me joy and made me feel safe, I, like 2.7 million Americans a year, had an unintended pregnancy. Immediately, I knew I wanted an abortion, a very safe medical procedure that one in four U.S. women will have in their lifetimes. For many reasons, including the decade of abuse she did not protect me from, I couldn’t tell my mother. Instead, I sought a judicial bypass. I had to navigate not only how to get to the judge, but how to do so on a school day. I had no idea what I should wear or what information he would want. I thought I was going to court like on TV. But instead I was ushered in his chambers. It felt very intimidating.
Ms. Crystal Good: (03:12:07)
I told him I was a good student. I was a leader in my school. I had opportunities that many young women from West Virginia didn’t. I wanted to go to college to be a writer. I said, “Your honor, I have a future. I choose an abortion.” It felt like a miracle. An adult believed me. An authority figure deemed me to be in charge of my own body and my own future. I still think what might have happened if I didn’t have a list of accomplishments or if the judge didn’t think I was competent enough to decide when to start my family, or if he believed the harmful stereotype I was raised to believe, that Black girls were fast and promiscuous. Access to an abortion should not depend on our GPA, the color of our skin, where we live, or the luck of the draw. It should not depend in any shape, form, or fashion who your Governor is or who is sitting on the Supreme Court.
Ms. Crystal Good: (03:13:03)
My entire childhood, every adult in my life had failed me. None of them deserved to make a decision about my body. I needed compassion and trust from my government. All I got was another barrier. There are thousands like me who are sexually abused by parents, guardians, and grownups who are supposed to support them. Today, 37 states require parental consent or notification for a minor to access abortion. Most young people do involve their parents in their decision. But for those like me who cannot, these kinds of restrictions make abortion hard to get, because we have to travel, miss work or school, save up for weeks, and pay out of pocket. The average per capita income in West Virginia is $25,479. That’s one-seventh of your Senate salaries. In central Appalachia, Black and low income White people struggle to access healthcare, including abortion, and to have our decisions respected.
Ms. Crystal Good: (03:14:06)
The Supreme Court has made historic decisions to uphold our rights and freedoms. My right to an abortion, the integration of my public schools, the Affordable Healthcare Act that ensures that I have health insurance, and workplace protections for my transgender daughter. I have put my faith in the Supreme Court, and with this nomination, I am losing faith. Although the way I have chosen to create my family is demonized by some politicians, the reality is that we’re like most families across the nation. I had an abortion. I have two sons and a daughter who is trans. I love my children. We are a proud Afrolachian family, that’s African American Appalachian.
Ms. Crystal Good: (03:14:50)
My story is my own but represents so many people left out from the Supreme Court nominee hearings. And entire caste of people. That’s C-A-S-T-E, caste. President Trump has been clear that he would only appoint justices who would overturn Roe V. Wade. Unfortunately, through learning about Judge Barrett’s record, I understand why the President believes she passes the test. Please listen to people who have had abortions. Hear us when we ask you, do not confirm this nominee. Our futures, our families, our lives depend on it. We too are America. Thank you.
Lindsey Graham: (03:15:35)
Thank you, ma’am, very much. Ms. Staggs.
Ms. Stacy Staggs: (03:15:46)
Good afternoon, and thank you for the opportunity to come and speak with you all today. I’m here to raise my voice against the nomination of Amy Coney Barrett and in support of the Affordable Care Act, as well as to share my family’s story. While I appear in this room alone, I bring with me millions of families, including 130 million Americans who live with pre-existing conditions and millions of Americans who dissent from this hearing and any confirmation to the Supreme Court before inauguration day. My name is Stacy Staggs, though I’m more frequently addressed as mommy. I live in North Carolina with my husband and twin girls who have complex medical needs and disabilities.
Ms. Stacy Staggs: (03:16:46)
I advocate for their healthcare, education, and community inclusion with Little Lobbyists, a family led organization advocating for children like my own. I share Judge Barrett’s disdain for hypotheticals. As a behavioral interviewer, I know that past conduct is an indicator of future decision-making, and I am here today because Judge Barrett has repeatedly made statements that are hostile to the Affordable Care Act. A vote for Judge Barrett is a vote to take away healthcare, and a vote for Judge Barrett is a vote to strike down the law that saved the lives of my daughters. And my family is but one of many. Studies confirm the ACA has saved thousands of lives, especially in states that have accepted Medicaid expansion. And my family is a real life example of the ACA’s success. My twin daughters, Emma and Sarah …
Ms. Stacy Staggs: (03:18:02)
My twin daughters, Emma and Sarah, are adorable and active seven-year-olds. They’re the lights of my life, and we balance a busy schedule of therapies and distance learning. Sarah Bean is my nature lover. She’s happiest when she’s splashing in the water or digging in the dirt, and Emma has a smile that lights up her entire face. Her favorite day is Tuesday, when we go to the farm for therapeutic horseback riding. I love them with the same joy and amazement I’m sure you feel for your own children. Seven years ago, their recent birthday would have been too much to hope for.
Ms. Stacy Staggs: (03:18:56)
My husband and I were excited to learn we were expecting. We were surprised to learn. We were having twins. I had excellent prenatal care, which is one of the essential benefits under the Affordable Care Act, and my pregnancy was going great until one day it wasn’t. I was experiencing pain, so my doctor suggested I come down to the hospital for monitoring and within hours, as my vital signs faded, I was rushed to the operating room where our small wonders were born via emergency C-section at 28 weeks. They were rushed to the neonatal intensive care unit where their survival was far from assured.
Ms. Stacy Staggs: (03:19:50)
We sat in vigil for weeks, learning an entirely new language of medical terms and holding our breath in between heartbeats on their monitors. I wasn’t able to hold either girl for several weeks, but they were about the size of my hand. They had IVs in every extremity and skin so fragile you could see through it. Emma’s birth weight was one pound, nine ounces. She has never taken an unassisted breath or made a sound, due to vocal cord paralysis. She has an artificial airway through a breathing tube and she eats through a feeding tube that was surgically placed when she was three months old. Her twin sister, Sarah, was the bigger of the newborns at two pounds, and she needed heart surgery at two weeks old. That was the day percentages took on a new meaning for me. The surgeon told us his success rate for Sarah’s procedure was 98%, then he leaned in and said, “But that doesn’t mean much to the parents of the 2%.” To this day, when I hear data points and discussion about recovery from COVID-19, for example, I’m immediately transported back to the surgical waiting room.
Ms. Stacy Staggs: (03:21:26)
When I was finally able to bring my babies home from the hospital for the first time after 110 days, we received an explanation of benefits with total claims nearing $1 million for their care. In the first seven years, our combined claims have surpassed four million. Without the protections of the Affordable Care Act, my daughters would have already hit their lifetime caps and now will be rendered uninsurable, and we have primary insurance through my husband’s employer. Medicaid support has been a lifeline for Emma because she needs 24-hour eyes-on care. Medicaid provides Emma with home and community-based services, including nursing, that allow her to stay home with us, where she belongs instead of living in a hospital or other medical facility.
Ms. Stacy Staggs: (03:22:26)
Our country’s in a public health crisis right now, one that’s getting worse by the day. In this moment, we need our legislators to protect our families, to provide relief and support, to do the job we’ve elected them to do. We do not need to rush through the nomination of a Supreme Court justice, who is on the record as hostile to the law that provides our healthcare protections. Shifting focus away from a relief package for families during the pandemic tells me the committee’s priorities are not aligned with those of the American people. I urge you to listen to us and address the immediate need of COVID relief.
Ms. Stacy Staggs: (03:23:07)
Last, I’d like to thank you for the opportunity to give my testimony, to say healthcare is a human right and decency matters, and to remind you that as your constituents, my children and all children like ours are your children too. I hope you’ll remember your duty to all of our children. As you cast your vote to protect or to take away the healthcare their lives depend on to survive and thrive. Lastly, let me share that today is the first day of early voting in North Carolina. It’s a big day for me here, too. My next task is to cast my ballot accordingly. Thank you.
Lindsey Graham: (03:23:54)
Thank you very much. I’m sorry, I jumped out of order there. We got Ms. Amanda Rauh-Bieri, then we’ll get to Ms. Wolk.
Amanda Rauh-Bieri: (03:24:07)
Mr. Chairman, Ranking Member Feinstein, and other members of the committee. I am deeply honored to speak to you about somebody who has had an outsized effect on my life as a former boss and a cherished mentor, Judge Amy Coney Barrett. I know Judge Barrett to be a person of the highest character and I sincerely and enthusiastically support her nomination to be an associate justice of the United States Supreme Court. I had the privilege to serve as a law clerk during Judge Barrett’s first term on the bench, joining her chambers shortly after her confirmation to the Seventh Circuit in 2017.
Amanda Rauh-Bieri: (03:24:42)
From the very beginning, I saw Judge Barrett exhibit the rare and unique set of qualities that make her an exemplary judge. She is a brilliant thinker, she analyzes and writes about legal issues with striking clarity and precision. She is patient, thoughtful and compassionate. She brings each of these qualities to bear on every case she decides. Judge Barrett is dedicated and disciplined, and as a judge, she’s committed above all else to the rule of law. As she has said, and as I have seen, Judge Barrett understands that policy decisions must be left to the political branches. The role of a judge is to enforce the law as written. I have seen Judge Barrett put that unwavering commitment to the law into action in every case before her. She approaches each case with an open mind. She commits to the idea that either side might, in the end have the better legal argument.
Amanda Rauh-Bieri: (03:25:37)
Judge Barrett’s open-mindedness is grounded in her compassion. She has spoken about viewing each decision from the perspective of the losing party. I saw her put that ethic into practice. It would be easier in many ways not to take this more demanding approach, but I learned from Judge Barrett the law is about fairness over efficiency and that every member of society and every party that comes before the court is entitled to equal justice. Judge Barrett is a judge who applies the law fairly and reaches the result that is required, and she writes with empathy and appreciates the real-life impact of her decisions.
Amanda Rauh-Bieri: (03:26:16)
Alongside Judge Barrett’s powerful intellect and enduring commitment to the law is her determination and discipline. In deciding cases, Judge Barrett has never relied simply on her extraordinarily sharp legal mind. She pairs that gift with a dedication to the full process in each case. She never takes a shortcut. She thoroughly examines the facts and the applicable law in each case. She’s an intensely hard worker. Even the early rising clerks often arrived at her chambers to find the light already on underneath her office door.
Amanda Rauh-Bieri: (03:26:51)
Even with her towering intellect and failing work ethic, Judge Barrett always took seriously the views of her law clerks. She would often pop over to our offices ready to hear our perspective on a case or discuss a particular legal question. It’s a testament to her respect and charity that she often walked the path from her office to mine, eager to hear my thoughts on the legal questions or to engage me in discussion over the thornier issues. It was in those conversations that Judge Barrett created a culture that encouraged us to voice our differing opinions, even if we thought she would ultimately disagree. She sees the value in discourse, and she fosters that value in her clerks, teaching us to be open and curious and humble about the law and life. From what I saw as a law clerk, Judge Barrett approached her colleagues on the bench with the same gracious humility and openness that I experienced from her.
Amanda Rauh-Bieri: (03:27:44)
Judge Barrett’s impact on my life runs far deeper than legal training. As I said, I was in Judge Barrett’s first class of clerks, and I joined her chambers in January of 2018, two weeks after my graduation from law school. I loved my time in law school, but I also spent much of it unsure of myself. I often tried to downplay my presence, afraid that I was wrong or inadequate. I wasn’t certain I had what it took to succeed. Judge Barrett changed that for me. Her example and mentorship inspired in me confidence I didn’t know I had. I can’t point to a single event or a point in time when that change occurred. Change like that, formative change, happens gradually across hundreds of conversations and hours shared.
Amanda Rauh-Bieri: (03:28:35)
Judge Barrett leads in law and in life with conviction, generosity, and courage. She inspires me to do the same. For example, I can tell you with certainty that I would not have the confidence to be here speaking to this committee without Judge Barrett’s influence in my life. Judge Barrett has the rare gift of lifting everyone around her. She knows how to bring out the best in her clerks, spurring each of us to excellence. Judge Barrett has her own large family, but that didn’t stop her from treating her clerks like family too. Shortly after I arrived in chambers, my three co-clerks and I piled into the back of Judge Barrett’s minivan and she drove us from South Bend to Chicago for her first set of oral arguments. She cared deeply about each of us, investing time and encouraging us to cultivate rich, fulfilling and well-rounded lives both in and beyond the law.
Amanda Rauh-Bieri: (03:29:27)
Clerking for Judge Barrett and being mentored by her as an honor. Judge Barrett has elevated my thinking, writing, and character, not by prescription, but simply by being herself. As a Supreme Court justice, she would be a role model for generations to come, as she is for me. I am proud and honored to support Judge Amy Coney Barrett nomination to serve as an associate justice of the United States Supreme Court. Thank you.
Lindsey Graham: (03:29:53)
Thank you very much. Our last witness is Ms. Wolk. Did I get that right, Ms. Wolk?
Laura Wolk: (03:29:59)
You did. Mr. Chairman, Ranking Member Feinstein, and members of the committee, my name is Laura Wolk and I am a former student and mentee of Judge Amy Coney Barrett. In part because of her unwavering support, I am the first blind woman to serve as a law clerk on the Supreme Court of the United States. It is now my immense privilege to appear before you in support of Judge Barrett’s nomination to that same great institution. You have heard over the past few days about Judge Barrett’s judicial qualities, which are beyond reproach, but should you confirm Amy Barrett, the country will receive something far greater than simply an unparalleled legal mind. It will gain the service of one of the kindest individuals I have ever known. Her brilliance is matched only by her compassion, and her integrity is unassailable. I’m not speaking in mere abstractions here, rather, I have experienced these characteristics firsthand with life-changing results.
Laura Wolk: (03:31:07)
Because I am completely blind, I rely heavily on assistive technology to compete on a level playing field with my sighted peers. Before arriving at Notre Dame Law School in 2013, I worked hard to ensure that the university would purchase backup copies of the technology I use, but upon arrival, I discovered that bureaucratic glitches left me without access to that technology. On cue, my personal laptop immediately began to fail. Overnight, I found myself struggling to keep up in class, falling increasingly behind with each passing hour. I needed help and I needed it fast.
Laura Wolk: (03:31:45)
I’d been Judge Barrett’s student only for a few weeks, but her graciousness and warmth gave me hope that she could provide me with that assistance. Even so, I maintained relatively low expectations. Based on my past experience, I assumed that Judge Barrett would simply direct me to the proper bureaucratic channels, which could still take weeks, if not longer, to navigate. But Judge Barrett did something altogether different. She silently listened with deep attention as I explained to my situation, giving me the freedom to let down my guard and come apart. As a disabled person, I am accustomed to acting as if I have everything under control when in reality the world feels like it is spinning out from under me, but in front of Judge Barrett, I was able to let the mask slip, and indeed to disappear completely. I poured out all my concerns, not just about technology and my worries about failing classes, but all the burdens I currently carried as a disabled woman navigating a brand new environment.
Laura Wolk: (03:32:48)
When I finished, Judge Barrett leaned forward and at me intently. “Laura,” she said, with the same measured conviction that we have seen displayed throughout her entire nomination process, ” This is no longer your problem, it’s my problem.” I can’t capture adequately the relief that washed over me at her words. Her offer was rare enough in its own right, but even when such offers are extended, many unfortunately do not follow through. It’s hard to trust an offer of assistance, no matter how desperately it is needed or earnestly it is given. Not so with Judge Barrett. Anyone who has interacted with her knows that she is a woman of her word. She means what she says And she says what she means. When she promised to advocate for me, she commanded my trust. To this day, I do not know what Judge Barrett did to solve my problem, itself a testament to her humility. All I know is that the technology arrived promptly, which in turn allowed me to excel and to place me in a position that would eventually allow me to apply for a clerkship on the Supreme Court.
Laura Wolk: (03:33:58)
This encounter was the first in which Judge Barrett demonstrated the depth of her generous spirit, but it was far from the last. She has remained a constant source of strength, encouragement, and solace as I have pursued professional and personal opportunities with no roadmap to guide me. Through her mentorship, she has given me a gift of immeasurable value, the ability to live an abundant life with the potential to break down barriers so that I can leave this world a better place than I found it though.
Laura Wolk: (03:34:29)
I am here today to share with you my story, the very best aspect of that story is that it is hardly unique. Those who have had the benefit of knowing Amy Coney Barrett understand that she possesses a boundless font of energy and a radical sense of love that she is ever ready to pour out upon those lucky enough to call her teacher, boss, family, and friend. Judge Barrett will serve this country with distinction, not only because of her intellectual prowess, but also because of her ability to treat everyone as an equal, deserving of complete respect. As a beneficiary of both of these qualities, I urge you to confirm Judge Amy Coney Barrett to the Supreme Court of the United States. Thank you.
Lindsey Graham: (03:35:19)
Thank you. Thank you, all. I mean, your testimony in their own way was incredibly compelling and your life circumstances, we appreciate you sharing with the committee, whether you were in support or opposition to Judge Barrett. I really don’t have any questions. I’m going to turn it over to Senator Feinstein.
Lindsey Graham: (03:35:37)
For the committee, if you want to grab a bite, we’ll press on, but I just want to keep going and we’ll make sure everybody can ask questions that would like. Just one editorial comment. Ms. Wolk, very impressed with what you had to say. My sister’s the executive director for the Commission of the Blind in South Carolina and she’s trying to bring about better outcomes. I just have some understanding of the world that you just spoke of, and maybe all of us can work together to up our game here when it comes to services.
Lindsey Graham: (03:36:17)
Senator Feinstein: (03:36:18)
I would like to ask this question, if I may, of Crystal Good. I want to thank you for being here and sharing your very remarkable story with the committee. You’ve testified about a very personal decision that you made as a teenager to have an abortion. I’d like to just talk to you a little bit more about it, because as you and I both know, this is very hard for a girl or for a woman and the personal circumstances are often not known. I was wondering if you would discuss with us what it has meant for you to have that right, that right constitutionally, to reproductive care.
Ms. Crystal Good: (03:37:29)
Thank you, Senator Feinstein. I just wanted to say that I’m here today with the support and prayers of my pastor, of my friends, and folks from the hills and the hollers, and my family, including my mom. My mom and I have come a really long way. We’ve been on a very long healing journey to build a strong relationship. Her actions then were not excusable, but today I really understand how women like my mom, and men too, can fall prey to a culture of silence and churches and systems and systems that knew what my stepfather was doing. They protected him and not me.
Ms. Crystal Good: (03:38:12)
My right to access healthcare is why I am here today. I am speaking from not a place of bitterness, but to give caution and concern in this nomination, that the government cannot and should not create barriers to healthcare. Thank you.
Senator Feinstein: (03:38:29)
Thank you very much. It’s very clear that you are a very strong person. I think we all wish you well. I would like to ask Dr. Bhatti, a doctor … Can I ask that question?
Speaker 5: (03:38:44)
Senator Feinstein: (03:38:44)
Okay. What would you say to people who have excellent healthcare coverage, as is true here for us in the Senate, to help us understand how important the ACA is for your patients?
Dr. Farhan Bhatti: (03:39:01)
Well, what I would say to folks with good insurance is that we’re blessed. I have good health insurance, too. We are blessed to be in a position. As a society, we sometimes punish people when the only mistake that they might’ve made is not choosing their parents wisely. A lot of my patients fall into that category, where they are hardworking people, they go to work every day, they try to do their part to contribute to society, but their stories don’t often get told. That’s why I’m here today, is to tell their stories and to let folks know that the committee that I’m here representing, and I as an individual, value health healthcare for all Americans. That’s what this is all about, is making sure that every American has access-
Senator Feinstein: (03:39:53)
Can I stop you for a minute?
Dr. Farhan Bhatti: (03:39:56)
Senator Feinstein: (03:39:56)
Because what’s really important to me is what do you think of the long-term consequences that the pandemic will have on this nation’s health?
Dr. Farhan Bhatti: (03:40:05)
I’m very worried about the pandemic. We already have had 217,000 deaths, eight million Americans have contracted COVID, 14 million Americans have lost their employer-based healthcare because they’ve lost their jobs since the beginning of the pandemic. We need to take bold action to get the pandemic under control in order to save as many lives as possible. I’m very concerned about our health response at every level of government.
Senator Feinstein: (03:40:39)
Well, last question. What do you believe the most critical health response is to be beneficial? If you could speak a little bit about that and the numbers of people and your advice to us.
Dr. Farhan Bhatti: (03:40:58)
We need to do a better job at the highest level of government, starting with the federal government on down, with testing and contact tracing and providing the resources to all the states that they need to do that, because the numbers, as striking as they are, are a sharp underestimation of what the reality actually is because we do not have the capacity at the ground level to perform as many tests as we need to know just how many Americans actually have COVID and just how many people have become sick and have died from COVID. The numbers are a sharp underestimation. Anything that the federal government can do to empower each and every state to get more accurate counts, and then also to lead by example. Masks should not be a partisan issue, washing hands should not be a partisan issue, social distancing should not be a partisan issue. We need every elected member of Congress to lead by example by engaging in acts of public health that we need every American to engage in order to prevent the spread-
Senator Feinstein: (03:42:10)
Such as? What kind of acts of public health?
Dr. Farhan Bhatti: (03:42:14)
I mean, basic things like having every member of Congress commit to wearing a mask, every member of Congress commit to social distancing, commit to not going into indoor places with more than 10 people, not holding large rallies where people aren’t wearing masks standing right side-by-side next to each other. Every member of Congress, I believe, as physician, has an obligation to lead by example. That’s what’s going to help my patients the most, is when they see elected officials that they trust leading by example and participating in or taking part in simple public health measures to keep everybody safe.
Senator Feinstein: (03:42:56)
Thank you very much, doctor. [crosstalk 03:42:58].
Lindsey Graham: (03:42:58)
[inaudible 00:03:42:58], I’ll turn it to Senator Kennedy, does that include protest?
Dr. Farhan Bhatti: (03:43:03)
I beg your pardon, Senator?
Lindsey Graham: (03:43:04)
Would that include mass protest?
Dr. Farhan Bhatti: (03:43:08)
Any large gathering of people.
Lindsey Graham: (03:43:09)
Yeah, would that include rioting?
Dr. Farhan Bhatti: (03:43:14)
Well, sir, I don’t support rioting if that’s what you’re asking me.
Lindsey Graham: (03:43:17)
Well, I just want to make sure. Thank you. Senator Kennedy.
Sen. John Kennedy: (03:43:22)
Thank you. Mr. Chairman, I just wanted to thank all of our witnesses for taking the time to come by. I particularly want to thank Professor Prakash. Am I saying that right?
Professor Saikrishna Prakash: (03:43:38)
Sen. John Kennedy: (03:43:39)
Thank you, Professor. You did me a favor. You may not remember it, but one of my colleagues in my office is sitting behind me, Hannah Freyer, and you recommended Hannah to me. I wanted to thank you for that. You taught her well, she’s made a substantial contribution to my office. Also, two of your colleagues, Paul Stephan and Dan Ortiz, are friends of mine. We went to school together, though at different schools. Paul and I were together at one school and Dan and I were together at another. Please remember them to me. They are, in a word, brilliant and they’re good mates. Tell them I said hi.
Professor Saikrishna Prakash: (03:44:38)
Sen. John Kennedy: (03:44:39)
And thanks again to everyone.
Senator Feinstein: (03:44:40)
Is there another senator? [inaudible 00:26:59].
Senator Durbin: (03:44:59)
Here’s one. Thanks Senator Feinstein. I want to show you a photo of Nate Lau. I’ve produced a photo of an Illinoisan every day, and this one, Nate, the photo, is eight years old. Good-looking young man. It’s the eighth anniversary of a surgery that saved his life. diagnosed with biliary atresia, he ended up needing a liver transplant. Thank you, Lurie Children’s, a wonderful hospital. Medical care cost more than a million bucks in the first year of his life, and of course it continues. He’s in the third grade, he plays soccer, video games and playing with his younger sister. He, of course, now has a preexisting condition for the rest of his life. His parents tell me that lifetime limits might’ve cost him his life, period. When we talk about the future of the Affordable Care Act, and Doctor, thank you for reminding us, remember this little fellow. What a good-looking young man he is.
Senator Durbin: (03:45:56)
I’m going to make a confession here that may not sit well with some of my colleagues, but when someone tells me, “Check the box, I’m an originalist,” it isn’t enough for me, doesn’t tell the whole story. In fact, it doesn’t tell me much. Let me read to you what the mayor of Chicago, Lori Lightfoot, who’s a friend, said a couple of days ago in a news conference. They asked her if she was an originalist. Here’s what she said. “You ask a gay, Black woman if she’s an originalist? No, ma’am, I’m not. That Constitution didn’t consider me a person in any way, shape or form because I’m a woman, because I’m Black, and because I’m gay. I’m not an originalist. I believe in the Constitution. I believe it’s a document the founders intended to evolve. What they did was set the framework for how our country was going to be different from any other. But originalists say that let’s go back to 1776 and whatever was there in the original language, that’s it. That language excluded over 50% of the people living in America today. So no, I’m not an originalist.”
Senator Durbin: (03:47:07)
I don’t take any comfort when people proclaim, “I’m an originalist.” Trust me, I’m going to look at this Constitution and having taken a good, hard look at it, don’t worry, we’ll find the wisdom in these words. We had a case here, which was very important, we talked about it over and over each day, and that was the. Kanter v. Barr case, because Judge Barrett took the time to write a lengthy, lengthy dissent. She, being an originalist, took this adventure in history. She went back 400 years. Senator Kennedy, 400 years, it wasn’t even a Louisiana maybe at that point. 400 years to find some guidance.
Senator Durbin: (03:47:46)
What she missed in her conclusion is what’s happening 400 yards from where she lives, where crime guns are coming across the border from state of Indiana into the city of Chicago and killing innocent people. The notion that we would somehow drop our guard and make it easier for people who are convicted felons to own firearms just doesn’t make sense from where I’m standing, and I don’t know if going back to the time of the British decisions on what to do with flintlocks is really much guidance when it comes to the reality today.
Senator Durbin: (03:48:18)
Ms. Clarke, if you’re still on board, would you comment on Mayor Lightfoot’s version of originalism and her take on it.
Ms. Kristen Clarke: (03:48:28)
I have grave concerns about Judge Barrett’s commitment to originalism and textualism as a theory of constitutional interpretation. It purports to rely on the understanding of our constitutional texts at the time when the language was adopted, which is not practical in the 21st century, and it can lead to a high degree of speculation about the framer’s subjective understanding.
Ms. Kristen Clarke: (03:48:59)
But I’d like if I could, Senator, to read a quote from Justice Kennedy. “The nature of injustice is that we may not always see it in our own times.” The generations that wrote and ratified the Bill of Rights and the 14th Amendment did not presume to know the extent of freedom and all of its dimensions, and so they entrusted to future generations a charter protecting the rights of all persons to enjoy liberty as we learn its meaning. I think that Judge Barrett’s strict adherence to originalism and textualism stands to turn our country back decades and runs the risk that we will exclude from the Constitution promise African-Americans, women’s rights, LGBTQ rights and more.
Senator Durbin: (03:49:56)
Isn’t it interesting, Ms. Clark, that many of the questions and issues before us still relate to the evolution of thinking beyond the original Constitution, as it related to African-Americans for example, and particularly as it relates to women today. We are going through this, we’re in the middle of this, and the folks in that constitution, which I swore to support and defend, didn’t get those two aspects right. Women didn’t have a right to vote and African-Americans weren’t even counted as full citizens, let alone have the right to vote. We are still debating that many hundred years later. Thank you, Mr. Chairman.
Lindsey Graham: (03:50:37)
Senator Durbin, [inaudible 03:50:38] side, Senator Lee.
Senator Lee: (03:50:40)
Thank you, Mr. Chairman. Judge Griffith, I’d like to start with you if I could. In addition to being a judge on the US Court of Appeals for the DC circuit, you’ve also been a professor. You’ve taught a course for a number of years at Stanford Law School regarding the unique, distinct role of the Article III judge. If-
Senator Lee: (03:51:03)
in think the unique, distinct role of the Article III judge. If I understand correctly, you’ve also started for the last few years teaching that same course at Harvard, and you’ll be teaching that at Harvard and the University of Virginia this year. What do you tell your students are some of the most important lessons that you’ve learned as an Article III judge?
Judge Thomas Griffin: (03:51:24)
Yeah. Thank you very much. Now the danger is, if I give you the full answer and the students are out there, they’ll do better on the exams by hearing what I think. I’m just kidding. No, I came upon this course because I wanted to have a better understanding of what my role was as a judge. What am I supposed to do under the Constitution? What role am I supposed to play? And if I could just tell a quick story that I think captures what I’ve learned, both from being a judge, and then from the courses and hearing interactions with the students, tell a story. It happened the day after I was confirmed by the Senate for my seat on the DC circuit. It was a happy day for me. I was in my office. I was the general counsel of Brigham Young University at the time. And I was the recipient of many congratulatory phone calls from people from around the country who I had known and worked with before.
Judge Thomas Griffin: (03:52:22)
One was from a fellow, he and I had been at the same law firm in Washington, DC. And he had clerked for a distinguished member of the DC circuit, who’s long since passed away, and then went on to clerk on the Supreme Court. And so he wanted to give me some advice about being a judge. He said, “Are you open for advice?” And I said, “Boy, am I. I’m I’m teachable.” And he said, “I’ll tell you what I was told the first day in my judges chambers on the DC circuit.” He sat me down and he said, “Here’s how we go about our job.”
Judge Thomas Griffin: (03:52:54)
The first thing that we do is we learn the facts of the case as best we can. These are real people. They have real struggles. They deserve to know that we know who they are, that we know the challenges they face. They deserve that. And so we have to spend a lot of time to learn their circumstances. So the next thing that we do is we think long and hard and deep about the fair result, a just outcome, the equitable disposition. And once we figured that out, we go find law to support our decision.
Judge Thomas Griffin: (03:53:34)
Now, the purpose of the call was a congratulatory one. It was not to engage in a discussion of the role of the Article III judge. But I took a vow that I would do my level best to always heed the first part of that advice, always heed the first part of that advice, that these are real people who have real struggles and we need to understand them. I took a vow that I would never follow the last part of his advice. Why? Because it’s the American people who get to decide what’s fair and just and equitable. And they express that through their politically accountable representatives, through members of Congress. They do that through legislation. They do that through the Constitution of the United States.
Judge Thomas Griffin: (03:54:21)
I was not appointed to take my own views of what’s fair and just and equitable and use them to resolve the case. That’s not what our system allows. Maybe that would be a perfectly good way of running a government, but that’s not the system that our government was created to do. I’m an originalist. I’m a textualist. There are many political progressives who are originalists. One is Professor Akhil Amar, who’s a great originalist scholar and is a political progressive. Professor Amar in his book, The Constitution: A Biography, which I highly recommend, says something I think quite profound. The most fundamental … I won’t quote him, but I’ll paraphrase him. According to professor Amar, the most fundamental Liberty protected by the Constitution is the right of we the people to set the rules by which the government by which our society is run. And we do that through politically accountable representatives. We don’t do that through judges.
Judge Thomas Griffin: (03:55:29)
Our job as a judge is to be a faithful agent to we the people as they express their will through law. The Constitution has a very complicated law making process in the case of statutes, by passage and presentment it to the president. In the case of amendments to the Constitution it’s two-thirds passage in Congress three-fourths ratification by the states. It’s a very complicated process. If you note in that process, there’s description for the role of the-
Senator Lee: (03:56:06)
Judge, we need to wrap it up.
Judge Thomas Griffin: (03:56:08)
Okay. There’s no role for a judge in there. So that’s the lesson we learned. Thank you, Mr. Chairman.
Senator Lee: (03:56:14)
Thank you very much, judge.
Senator Lindsey Graham: (03:56:16)
Thank you. Anyone over here? Senator Blumenthal? Yes, sir.
Senator Blumenthal: (03:56:26)
Judge Griffith, I was not the one responsible for interrupting you.
Senator Lindsey Graham: (03:56:29)
It was me judge. I apologize. We’re going over, and I know you didn’t have a clock.
Senator Blumenthal: (03:56:35)
I mentioned that because Judge Griffith sat on a case very recently where I was present as the plaintiff in Blumenthal versus Trump. And thank you, Judge Griffith for being with us and all the witnesses who are here today for giving your time to this very, very important proceeding. I want to ask particularly Ms. Clark, because there is such a strong racial justice movement in this country now. We’re in the midst of a health crisis and obviously an economic emergency, but the racial justice movement is so deeply important. I asked Judge Barrett about the issue of gun violence prevention. And I brought with me this story into the room, the voice and face of Janet Rice, who lost her son, Shane Oliver, in downtown Hartford.
Senator Blumenthal: (03:57:58)
They are black. I also had voice and face of Christian and Michael Song who lost their son, Ethan, and Natalie Barden who lost her brother. Every community, every part of the country is affected by the scourge of gun violence. Janet Rice lost her son, Shane Oliver, in a shooting, probably no fault of his. Certainly none of hers. I wonder if you could talk about the need for sensible, common sense, gun violence preventative measures.
Senator Blumenthal: (03:58:38)
Judge Barrett has taken a position that the Second Amendment should give felons, a class of felons, without any legal support in the circuit courts, the right to possess firearms. I’m extremely concerned about the effects of that kind of approach to common sense measures like Connecticut has and other states around the country that protect everyone. Background checks and emergency risk protection orders, safe storage laws, Ethan’s law, as it’s known in Connecticut because the song’s son Ethan was killed when a gun that should have been safely stored was available to the two teenagers who were in effect playing with it. And perhaps tell me about the effects of striking down those kinds of laws on communities of color around the country and the country as a whole.
Ms. Kristen Clarke: (03:59:50)
Thank you for that question, Senator Blumenthal. We’ve examined her record very closely with respect to the Second Amendment, and Judge Barrett’s Second Amendment jurisprudence reflects an originalist’s viewpoint. Again, we see her originalist and textualist outlook really shaping her view of the law, and her record suggests that she would be inclined to make it easier to expand individual’s rights to obtain and use guns, and that it would be more difficult for states to impose reasonable restrictions on the purchase and use of guns. And I do think that this is a very real issue for our country. We have been through a spate of mass shootings, and we also know that access to guns has devastating impacts on vulnerable communities, including communities of color. So I have deep concerns about her jurisprudence in this area.
Senator Blumenthal: (04:00:52)
Now, I should mention … (Silence).
Speaker 6: (04:01:47)
I’m just going to pass along to the folks in the WebEx that we did lose audio in the chamber. It’s not a WebEx thing. You’re not alone. You’re not having trouble with your internet connection. It looks like it may be similar to what happened yesterday, but that’s me now reckless conjecture. But yeah, from that standpoint, the recording studio team is trying to work to bring the microphones in the room back up. But they can’t hear in the room either. How about that? That’s the easy way to word it.
Speaker 6: (04:02:13)
Chairman Lindsey Graham: (04:37:48)
[Silence 00: 00:07]. Thank you to all our witnesses for being patient. All yours [inaudible 00:04:38:53].
Senator Blumenthal: (04:38:55)
Thank you, Mr. Chairman, I think I had about a minute, maybe?
Chairman Lindsey Graham: (04:38:58)
You got five minutes.
Senator Blumenthal: (04:39:00)
Thank you. I appreciate that.
Chairman Lindsey Graham: (04:39:00)
Start all over again.
Senator Blumenthal: (04:39:02)
Chairman Lindsey Graham: (04:39:03)
I don’t know what it is about you, but every time we get there, the system breaks. So you have five minutes.
Senator Blumenthal: (04:39:10)
Thank you. I want to just finish with Ms. Clark and I’ll restate the question if we have Ms. Clark. I hope we do. Are you there?
Ms. Kristen Clarke: (04:39:22)
Yes, I am, Senator.
Senator Blumenthal: (04:39:23)
Wonderful. Ms. Clark, I’ll restate the question maybe more succinctly and clearly. My impression about originalism is that it is often used as a smokescreen by activist judges who want to legislate from the bench and substitute their own judgements for the legislatures. My concern, one of them, about Judge Barrett is that her opinion in Cantor indicates an approach, very activist one, to the second amendment that would very possibly strike down common sense gun violence measures such as background checks, emergency risk protection orders, safe storage laws, like Ethan’s law in Connecticut, and other measures that are designed to stem and stop gun violence. I’m particularly concerned because of Janet Rice, who is still grieving her son, Shane Oliver. Natalie Barden, who is still mourning for her brother who was killed in Newtown. And the Songs, Kristen and Michael, who still have a hole in their heart for their son, Ethan.
Senator Blumenthal: (04:40:48)
And they championed Ethan’s law courageously in Connecticut. We are a safer state because of the victims and survivors of gun violence, whether Newtown or downtown Hartford as with Janet Rice and all across the state, often in communities of color, but literally every community, because every neighborhood, every family, every community is vulnerable to the scourge and epidemic of gun violence. It’s a public health menace. Let me ask you about that judicial philosophy, originalism as applied to the second amendment. Do you share my concern that it could lead to striking down those laws that state legislatures and hopefully Congress one day will enact to make America safer?
Ms. Kristen Clarke: (04:41:41)
Thank you, Senator Blumenthal. Very briefly, in our analysis of Judge Barrett’s record, her second amendment jurisprudence reflects an originalist approach and we believe that her orientation is one such that it would be more likely that she would seek to expand an individual’s right to obtain and use guns, and that she would be inclined to uphold, that she would likely resist restrictions on the purchase and use of guns. We looked at her decision in Cantor versus bar very closely. We note that the opinion that she wrote, which was authored along with two other judges, is one in which some observers has found to be in conflict with that of every other appellate Court that has addressed the issue that was at stake in Cantor. So I am deeply concerned Senator that she would put her thumb on the scale of providing more access, easy access to guns in our country.
Senator Blumenthal: (04:42:56)
Thank you very much, Ms. Clark. I’d like to turn to Ms. Good. You described in your testimony, being a survivor of sexual abuse and you state that you are the person you are today at 16 years old because you quote, “Had access to an abortion”, end quote. You also may have heard my asking Judge Barrett if she thought as a her legal position, Roe V. Wade was correctly decided, including in cases where pregnancy was the result of sexual abuse. And I brought to her the story of Samantha who was a rape victim and survivor, became pregnant and had an abortion. How did you feel knowing that Judge Barrett simply wouldn’t answer that question about whether Roe V. Wade and Griswold V. Connecticut were correctly decided?
Ms. Crystal Good: (04:44:01)
Well, Senator thank you for the question. And you know, as a survivor, it’s deeply, deeply disturbing and it just makes me think, no one cared about consent when I was being sexually abused and all young people, teens, deserve the right to consent, autonomy, and dignity, and I’m here to stand against this nomination. Thank you.
Senator Blumenthal: (04:44:25)
Thank you very much. Thanks Mr. Chairman.
Chairman Lindsey Graham: (04:44:27)
Thank you. Senator Hirono.
Senator Mazie Hirono: (04:44:32)
[inaudible 04:44:32] Mr. Chairman. Mr. Chairman, I have a letter from the National Education Association, which represents 3 million educators serving 50 million students. They are urging the Senate to focus on a COVID-19 relief bill and not to quote the letter, “Rush to confirm President Trump’s nominee Amy Coney Barrett before election day when that is not what the American people want.” I ask unanimous consent to enter this letter into the record, Mr. Chairman.
Chairman Lindsey Graham: (04:45:01)
Senator Mazie Hirono: (04:45:01)
Thank you. I have two questions for Ms. Clark. So if you can sign on. Ms. Clark, the Supreme Court’s Shelby County decision gutted the pre-clearance provision of the voting rights act, which required jurisdictions with a history of voting discrimination to get approval for changes to their voting laws. After Shelby County, over a dozen States passed restrictive voting laws. During the hearing, I asked Judge Barrett, whether voter suppression or voter discrimination currently exists. She refused to answer and pointed out that the Supreme Court did not address section two of the voting rights act in Shelby County. But the Supreme Court has recently decided to take up this issue.
Senator Mazie Hirono: (04:45:49)
Ms. Clark, unlike there pre-clearance provision, section two puts the burden on those who are challenging the voting law to show that the law would result in quote, “A denial or abridgment of the right of any citizen to vote.” This kind of burden shifting makes it hard to prevail, wouldn’t you agree? Ms. Clark?
Ms. Kristen Clarke: (04:46:15)
Yes, Senator I completely agree. Section two is not a substitute for the important protections that had long been afforded by the section five pre clearance provision.
Senator Mazie Hirono: (04:46:26)
I think everyone should understand what burden shifting really will result in, that there has to be basically a case by case bringing of these losses to challenge, whether or not the law passed by a state actually suppresses the vote. So that’s a pretty tough burden. Whereas their pre clearance provision basically required the jurisdictions who had to comply with that provision to show that their provision did not suppress votes. Isn’t that correct?
Ms. Kristen Clarke: (04:47:01)
That’s correct, Senator. And in addition, section two litigation has proven historically to be more costly, more time-intensive and more burdensome.
Senator Mazie Hirono: (04:47:14)
Yes. And I think that the Supreme Court in making that five to four decision should have predicted that that was exactly going to what was going to happen. And they certainly should have predicted that a lot of States would begin to pass all kinds of laws that would have the effect at least of suppressing votes, especially of minorities and blacks.
Senator Mazie Hirono: (04:47:34)
Another question for you. I know you reviewed Judge Barrett’s record, including her cases on the seventh circuit. I did too. And I found two other two of her cases relating to discrimination in the workplace, particularly concerning. The first was EEOC V. AutoZone, where Judge Barrett voted to not rehear on bonk, a panel decision that in essence approved a separate but equal arrangement. The other was Kleber V. Car Fusion corporation, where Judge Barrett joined an opinion that effectively approved of age discrimination against job applicants. Can you speak in a little more depth why the lawyer’s committee was concerned about Judge Barrett’s record on workers and civil rights?
Ms. Kristen Clarke: (04:48:27)
Thank you, Senator. In the area of workers’ rights that we examined, Judge Barrett has demonstrated an inclination to side with corporations and with employers over employees. We are deeply concerned about the EEOC versus AutoZone case where Judge Barrett essentially, along with four other judges, refused the federal government’s request for a full panel review of the case involving an employer, here AutoZone, which chose to intentionally segregate employees on the basis of race. They assigned black and Latino employees to AutoZone locations based on race. And they did so explicitly. And the lower three Judge panel found that this wasn’t racial segregation because people were still paid the same and receive the same benefits. But the outcome here is deeply disturbing. We do not need a return to an era in which we tolerate intentional racial segregation in any context of society.
Ms. Kristen Clarke: (04:49:36)
We were also deeply concerned about Smith vs. Illinois department of transportation, where Judge Barrett authored a decision holding that a black traffic patrol driver failed to make a case that he was fired in retaliation for making complaints of racial bias. In this case, the worker was subject to racial slurs. His coworkers use the N word on multiple occasions. And while the Judge recognized that this was a racial epithet, she did not find that there was a sufficient basis to find that he was subject to a hostile work environment. When you look at the sum total of Judge Barrett’s record in the title seven context, it raises grave concerns about her willingness to protect victims of discrimination in the workplace, and seems to make clear her orientation to protect the rights of corporations and businesses.
Senator Mazie Hirono: (04:50:42)
If may Mr. Chairman. So in the case that wasn’t overt, race-based kind of decisions, shouldn’t that have been a per se violation.
Ms. Kristen Clarke: (04:50:55)
I agree Senator, but we looked at her record and it reflects a pattern. And I think that the patterns that we see across both of these cases indicates a Judge who would not be inclined to enforce title seven of the civil rights act, one of our nation’s most important federal civil rights laws, when it comes to protecting workers in the workplace. I have every reason to believe that she is somebody who would side with corporations and businesses.
Senator Mazie Hirono: (04:51:28)
And already we have a Supreme Court, their studies have shown, that already is protecting corporate interests over individual rights. Thank you.
Chairman Lindsey Graham: (04:51:36)
Sen. Cory Booker: (04:51:38)
Thank you very much. I want to thank my more senior Senator and friend, Chris Coons, for yielding to me, was generous of him. And thank you. I want to thank all the witnesses first and foremost, extraordinary.
Senator Chris Coons: (04:51:48)
It was more that I ignored him, than anything else. I didn’t see him over there.
Sen. Cory Booker: (04:51:53)
I appreciate that. I want to thank all the panelists. It’s really been extraordinary to hear from all of you, frankly. And Crystal Goods really moved me with her testimony, as did Stacy Stacks. I’m thankful to Miss Wolke. I just want to thank you for coming in and being around all these people and their hot air amidst a pandemic. It means a lot to me. Mr. Prakash, I would thank you as well, but I’m still mad that you brought up my classmate Noah Feldman in a Supreme Court hearing, as I am mad at the Honorable Griffith for, I thought I could get through a Supreme Court hearing without hearing about my con law professor Akilah Mar, but yet I did not make it, this close.
Sen. Cory Booker: (04:52:35)
I want to focus my questioning on Ms. Clark, if I can. And want to thank you for your really important testimony. So I talked a lot about a lot of concerns around race. We’re obviously in the middle of one of our larger racial reckonings in our country’s history. I started a lot of my questioning yesterday with about criminal law. And I’m wondering maybe if you could just start grounding a lot of my concerns in actual writings of hers, and perhaps you can talk about Miranda first, her writings on Miranda.
Ms. Kristen Clarke: (04:53:09)
Thank you, Senator Booker. We are at an interesting moment. This nomination arises at a moment where people are protesting racial injustice and unconstitutional policing practices. And in our examination of her record, we looked very closely at one of her articles where she talks at length about Miranda, the Miranda doctrine, the doctrine that requires that officers read you your rights when you’re accused of a crime. And in her writing, she’s described the Miranda doc, as an example, quote, “The Court’s choice to over enforce a constitutional norm”, that she says goes beyond constitutional meaning.
Ms. Kristen Clarke: (04:53:53)
And she suggests that Miranda warnings throughout time have inevitably led to the exclusion of evidence even when some confessions were freely given. I’m gravely concerned that a Justice Barrett on the Supreme Court would mean a Court that would be more inclined to chip away at the constitutional rights of those who are accused of crimes. And we know that our criminal justice system is disproportionately composed of black people and people of color and so this is an area of grave concern.
Sen. Cory Booker: (04:54:32)
And the history of African-Americans in the criminal justice system, of being wrongfully convicted is pretty staggering even up to recent months.
Ms. Kristen Clarke: (04:54:45)
That’s correct Senator. And we also know that racism affects virtually every stage of our criminal justice system from who gets stopped on the street, to lengths of sentences, to who gets the death penalty. And those are the kinds of cases that routinely come before the Court. And so in many respects, this is a life and death issue for black people and people of color who are subjected to punishment at the highest levels in our criminal justice system.
Sen. Cory Booker: (04:55:18)
And there’s a lot written about this. There’s a lot of studies about how African-Americans in particular, but people period, have been churned into a system regardless of innocence or guilt. In fact, I mentioned, you heard me riff off a whole bunch of well read books, but even now by the general public, you’re familiar with one, Why Innocent People Plead Guilty, correct?
Ms. Kristen Clarke: (04:55:41)
Sen. Cory Booker: (04:55:43)
Yes. And it’s this book, the documents, how we have a criminal justice system, it’s no longer even trials. We’ve gotten to a point now that 98% of our criminal convictions are done by plea bargain. Are you familiar with example after example, I would imagine as I am, dozens and dozens in my time as Mayor of young people caught up in the criminal justice system that plead out just simply to get out of jail, correct?
Ms. Kristen Clarke: (04:56:08)
Yes. And we also are deeply familiar with the resurgence of debtors’ prisons, which entangled poor people who are disproportionately people of color in the criminal justice system, merely because of their poverty.
Sen. Cory Booker: (04:56:22)
Right. And can I, I want to end with a question if I’ll get a little bit of a grace period here. The first time I visited Rikers Island, visiting youth lockup, Ms. Clark, I was stunned and I’m embarrassed to say I was already Mayor the city of Newark, that I was there thinking I was visiting people who’ve been convicted of crimes. Met with a whole bunch of teenage kids and I asked them how long they been in for. And they were like six months, eight months, a year. Still remember from 18 months was one of them. And I said, well, what have you been convicted of? And they all look at me and saying, we have not been convicted. And these were people in for relatively minor accusations where they were stuck within the criminal justice.
Sen. Cory Booker: (04:57:03)
Where they were stuck within the criminal justice system that led Bryan Stevenson, the quote I used yesterday of his, that “we have a system that treats you better if you’re rich and guilty than if you’re poor and innocent.” This is not something that’s an occasional miscarriage of justice. These go on in thousands of cases in every city in America, where you see young people being churned into the system, being put into solitary confinement, which is still illegal in most States, which psychological professionals call torture. Then they’re let out of prison now having those deeply psychological effects, still often not convicted of anything. And this is rife within the system. And to say that some of these basic protections like Miranda are the over-securing of rights, to me is an astonishing lack of knowledge about what actually goes on in our criminal justice system every single day.
Sen. Cory Booker: (04:58:01)
And to sit on the highest court in the land and not know about what anybody who works in the criminal justice world… I’ve seen some federal judges break down in tears about having to follow mandatory minimums. I’ve seen prosecutors come to me and say there’s got to be a different way, but to see that we are… The concern I had about not being familiar with some of these basic studies coming from, and you know this, I won’t name the people on the right, the organization, some of them have been vilified at this very hearing that I found common cause with to try to correct some of these tragedies. Could you just finish just saying… Is anything I’m saying overstating the fact?
Ms. Kristen Clarke: (04:58:44)
No, Senator, and the most notorious example of the crisis that you’ve just described is Kalief Browder, who was held for almost three years at Rikers Island because he couldn’t post bail because he was poor, and he was accused of stealing a backpack. He was never actually brought forward for trial. And he ultimately took his life. He’d committed suicide because of the trauma that he experienced at Rikers. He was held in solitary confinement for much of his time. And so Justice Barrett’s record on race and criminal justice matters. And her writings on Miranda provide a powerful roadmap into how she would likely handle criminal justice cases that come before the Supreme court. This is in large part another reason why we oppose her nomination.
Sen. Cory Booker: (04:59:33)
And so, I just would say in closing to the Chairman, we sit in a country where you’re comfortably sitting here right now while children are being tortured in solitary confinement. Right now, disproportionately Black, disproportionately poor. We have a system where Blacks are, as I quoted the data, disproportionately stopped by police. Even though they find traffic stops that White people actually are found with drugs more than Black people when they’re stopped.
Sen. Cory Booker: (04:59:58)
You could go through every part of the system from station house adjustments, all the way through to sentencing, treatment in prison, perceptions of threat that often deeply affect whether somebody gets probation or parole. And then the collateral consequences. If somebody is poor now that when they get out of prison, their collateral consequences they face are much different than someone who’s wealthy who comes out of prison.
Sen. Cory Booker: (05:00:23)
It just so frustrates me that we have a national shame. That our criminal justice system is not just. That we do not have equal justice under the law. That we are a nation that still engages in things that other countries called torture to people in our prisons. And that we do not, number one, have a sense of urgency to do something about it. Number two, continue to put people on the highest court in the land who are not even familiar, it seems, with the scholarship around this issue. Thank you.
Lindsey Graham: (05:00:53)
Just a few brief comments. We’ll finish with Senator Coons.
Lindsey Graham: (05:00:57)
Bail reform, I think there’s some legislation to abolish cash bail. I think Senator Rand Paul maybe is on it. Senator Harris. I’ve tried to work with Senator Booker. I find you very knowledgeable in trying to seek common ground. You’ve seen States that basically abolish bail and drop somebody off in the morning. They’re back out on the streets in the afternoon, committing violent crimes. And you have the situation about some young man three years for stealing a backpack.
Lindsey Graham: (05:01:26)
And I get it. I just… There’s the other side of the story to the extent that we can create a parole system in the federal system, count me in. See, our federal system doesn’t have parole. The First Steps Act is a review of sentences for non-violent offenders, but Senator Lee, you’ve been really good on this. I would like to take a shot in trying to see if we can come up with some pilot program for parole. Because I went to a facility in South Carolina where a man had been there about 35 years. He was in his fifties and every guard said, “He’s here for no reason.” And the guard said, “This guy over here, if he ever gets out, he’ll kill the first person he meets.” So, I’d like to have a system that addresses what you’re talking about, but that doesn’t lead to a catch and release in terms of the violent offenders.
Sen. Cory Booker: (05:02:22)
I just want to say, I welcome that. Every prison I visit, a lot of conversations about faith. Matthew 25 really drives me, “Did you visit me in prison?” So I try to visit prisons. Every warden, toughest wardens, you name it, I always ask them that question. “Are there people here that don’t belong?” And they look at me and they say, “Absolutely.”
Lindsey Graham: (05:02:38)
Without a doubt. And they say, “Would parole help?” And they said, “Yes, I’d be the first one to go to the parole hearing.”
Lindsey Graham: (05:02:45)
Sen. Chris Coons: (05:02:47)
Thank you, Mr. Chairman, and to my colleague from New Jersey. As you well know, Cory, it was my own father’s volunteer work in prison ministry that really shaped my young life. My first visits to our state prison were when I was in middle school and my dad was going to visit a Bible study group and brought a convicted murderer home on parole weekends to our house, which really shaped my sense of what it means to be willing to take risks for those who the rest of society has given up on.
Sen. Chris Coons: (05:03:17)
And the First Step Act, which you played a central role in, as was graciously recognized by the chairman, previously was meant to be a first step along a long journey. And we have a lot of important work we can and should be doing in addressing the ways in which our criminal justice system is profoundly unjust. We are months and months past the point where the people of Delaware, at least, expected action on reform efforts here legislatively to deal with racial inequality. And that should be on our agenda every day.
Sen. Chris Coons: (05:03:50)
It was the judge for whom I clerked on the third circuit who first took me to a federal prison. She made sure that every one of her clerks went to a federal prison, met with federal prisoners, had an understanding of what the consequences were of the decisions that we were contributing to. And I frankly think everyone who serves in this role should have that insight both into victim’s families and the consequences of crime, but also into what incarceration means. What things like cash bail and solitary confinement mean, particularly to young people. I’ve had a bill on solitary confinement of juveniles for a number of years. We should work on this, but let me get to questioning the panel. Forgive me. You touched a point of passion there, Senator Booker.
Sen. Chris Coons: (05:04:35)
If I could just briefly, since I know I am the last questioner today, Dr. Bhatti from Lansing, Michigan, if I might. What kind of… Two things. Rudy Giuliani in speaking to an event about COVID recently said, “People don’t die of this disease any more.” Is that accurate? And what if any kind of meaningful relief can Congress provide that would actually help your clinic in Lansing, Michigan, and help those in public health respond to this pandemic?
Dr. Farhan Bhatti: (05:05:13)
Thank you, Senator, for the question. I think flatly the answer to your first question is no, it is not accurate. People are still dying every day. In fact, a thousand Americans each day are dying because of COVID.
Dr. Farhan Bhatti: (05:05:26)
And there’s a lot that Congress could be doing to help my patients. You could be potentially expanding unemployment. Giving people cash assistance. My patients are having difficulty paying rent. I have patients who are finding difficulty even getting food to eat every day. I have patients with difficulty affording medications. And so, my patients are facing real life challenges and they can’t afford to wait for an election and they can’t afford for Congress to continue with the hyper-partisanship that we’re seeing. They need action now.
Dr. Farhan Bhatti: (05:06:08)
And that’s one of the main reasons I came today was to advocate on behalf of my patients specifically. Giving people access to healthcare, anybody who has a COVID-related illness, shouldn’t have to worry about going bankrupt because of that illness. And then making sure that we protect those people moving forward so that they don’t lose their health insurance at any point in the future because of their pre-existing conditions. So, those are just some of the things that I think could be done to help protect my patients and help them get a leg up.
Sen. Chris Coons: (05:06:43)
Thank you, doctor. It’s my hope that we will find a path in these last three weeks before the election to actually deliver a meaningful bipartisan package. It should be robust and it should provide resources, particularly for grassroots medical clinics.
Sen. Chris Coons: (05:06:58)
Ms. Stags, I appreciated your advocacy around the health care of your children. You’ve spoken about how the Affordable Care Act is vital to keeping your children healthy and safe. My colleagues have said over and over again, they want to repeal and replace the ACA. One of my challenges has been finding the replacement plan. Can you tell me what their replacement plan is for the ACA?
Ms. Stacy Staggs: (05:07:23)
Thank you. Can you hear me?
Sen. Chris Coons: (05:07:26)
Yes, I can.
Sen. Chris Coons: (05:07:29)
Now I can’t.
Ms. Stacy Staggs: (05:07:31)
[inaudible 05:07:31] …few weeks ago, President Trump was here in Charlotte and signed an executive order that he said would protect pre-existing conditions. First of all, the Affordable Care Act is a whole heck of a lot more than protections against pre-existing condition exclusions. Second of all, the executive order that was signed, per White House counsel had no legal effect. It was a great idea, but I have to tell you, like you, I remain all ears and incredibly eager to hear and see and read, and consider an effective replacement plan. I know that my own Senator, Senator Tillis, is he in the chamber today?
Sen. Chris Coons: (05:08:30)
He’s no longer here. He was earlier.
Ms. Stacy Staggs: (05:08:32)
Okay. I know that Senator Tillis has put forth what is called a Protect Act that uses the term, “pre-existing conditions,” but in effect, doesn’t meet the standard that we currently have with the Affordable Care Act. So I would just say to that, that the American people are on pins and needles, and feeling very anxious for whatever replacement plan might someday appear so we can understand what the impact is on that.
Ms. Stacy Staggs: (05:09:12)
I’m sure you can understand then the anxiety that comes with the absence of that. Since 2017, when the little lobbyists first started to come together, we’ve been facing a future with threats to the Affordable Care Act minus a viable replacement. While our children’s lives hanging in the balance. It’s been incredibly difficult and stressful for years, and that continues and it feels more immediate with each day.
Sen. Chris Coons: (05:09:49)
Well, thank you, Miss Stags. One of the things I try to emphasize in talking to people in Delaware is that the Affordable Care Act doesn’t just protect the 20 million Americans who get their healthcare through ACA exchanges. It doesn’t just protect the north of a hundred, maybe as many as 130 million Americans, who have preexisting conditions. Now 7 million more because of this pandemic. It actually protects a majority of Americans.
Sen. Chris Coons: (05:10:12)
And this is relevant because we were this week considering a successor to Justice Ginsburg. It prohibits discrimination against women on the basis of gender. It doesn’t allow insurance companies to treat pregnancy as a preexisting condition or to charge more just because women are women. So it literally protects a majority of the American people.
Sen. Chris Coons: (05:10:31)
Let me close with just two questions, if I might, of Ms. Clarke from the lawyer’s committee. Ms. Clarke, my staff has identified, and I put up a board yesterday, of 120 Supreme Court cases that were decided five to four that I now believe are at risk of reconsideration or reversal if Judge Barrett is confirmed. One of these 120 cases is Grutter versus Bollinger. It’s a 2003 decision that upheld the promotion of racial diversity in admissions at the University of Michigan. Just this past week, the Trump administration sued Yale University for its efforts to promote racial diversity; a case similar to that, the administration has also recently supported against Harvard. Can you explain the impact this case has had for the nation and the consequences if it were overturned?
Ms. Kristen Clarke: (05:11:24)
Thank you, Senator, for that question.
Ms. Kristen Clarke: (05:11:26)
There are a number of critical cases in the Supreme court pipeline and some of the most high stakes cases are cases involving challenges to race conscious admissions policies at colleges and universities across our country. As you know, the Justice Department just recently and astoundingly sued Yale University. There have been similar suits brought against Harvard University, the University of North Carolina, the University of Texas at Austin. My organization is involved in all three of those cases and they are on a fast track to the Supreme Court.
Ms. Kristen Clarke: (05:12:06)
The Supreme Court has held that race can be one among a number of factors that our colleges consider in pulling together their college classes. What’s at stake here is racial diversity, just the principle of racial diversity. I am deeply concerned that Justice Barrett on the Supreme Court would upend the precedents that have been firmly established in this area, and that would turn back decades of progress in our nation and result in colleges and universities that are not racially diverse. Colleges and universities that lock the door on Black students and Latino students, who are deserving of access. Roll back the clock on equal opportunity. So, I’m glad that you asked this question, Senator Coons, because it really underscores how high stakes this nomination is for our nation.
Sen. Chris Coons: (05:13:06)
Ms. Clarke, you did some important early work in your career on election protection, and President Trump and members of this committee have repeatedly attacked the validity of mail-in voting, even though the president himself, members of his family, our troops overseas, our diplomats routinely use mail-in voting as a way to cast their ballot securely and there being no credible evidence of widespread voter fraud.
Sen. Chris Coons: (05:13:31)
We’ve actually, in reality, seen efforts by the administration to undermine the proper functioning of the postal service. We’ve seen the governor of Texas blatantly try to make it more difficult for voters to submit their ballots in a timely fashion in this upcoming election. We’ve seen lines between five and I think as many as 10 hours in the state of Georgia, for those who are lining up for early voting stations. And the president has openly called for voter intimidation. Can you speak to the impacts of these impediments on voting, how they differ from the impact of any alleged voter fraud and how this does or doesn’t align with a long and tragic history in this country of voter suppression?
Lindsey Graham: (05:14:15)
Ma’am, you certainly may answer the question, just briefly, if possible.
Ms. Kristen Clarke: (05:14:21)
Yes, Chairman. Senator Coons, voter suppression is alive and well across our country. We see it each and every day in places like Texas, Georgia, North Carolina. States that were covered by Section Five of the Voting Rights Act. We know that people are struggling to access the ballot amid the pandemic and there have been lawsuits to tear down the unconstitutional barriers to the ballot, which is why Judge Barrett’s views on voting rights matters. And which is why it has been very disturbing to listen to Judge Barrett this week express an unwillingness to acknowledge that voter intimidation is unlawful. To express an unwillingness to acknowledge that voting discrimination is ongoing and exist. And these cases are in the Supreme court pipeline and on the court’s docket, which is why, again, we oppose just Judge Barrett’s nomination to the Supreme Court. She will turn the clock back on voting rights in our country.
Sen. Chris Coons: (05:15:27)
Thank you very much, Ms. Clarke. Thank you, Mr. Chairman. [crosstalk 05:15:30] Thank you to all our witnesses.
Lindsey Graham: (05:15:31)
Sen. Dianne Feinstein: (05:15:32)
Can I make one brief comment?
Lindsey Graham: (05:15:33)
Sen. Dianne Feinstein: (05:15:36)
Mr. Chairman, I just want to thank you. This has been one of the best set of hearings that I’ve participated in, and I want to thank you for your fairness and the opportunity of going back and forth. It leaves one with a lot of hopes, a lot of questions, and even some ideas. Perhaps some good bipartisan legislation we can put together to make this great country even better. So, thank you so much for your leadership.
Lindsey Graham: (05:16:03)
Well, one, that means a lot to me, and I know we have very different views about the Judge and whether we should be doing this or not. But having said all that, to my Democratic colleagues, you have challenged the judge, you’ve challenged us, and I accept those challenges as being sincere and not personal. I don’t think anybody would cross the line with the Judge in terms of trying to demean her as a person.
Lindsey Graham: (05:16:29)
To the people on my side, thank you very much for being involved and telling our side of the story and asking the Judge about your concerns. One thing we can tell you, as long as there’s Senator Grassley, there’ll be a question about ethanol. To Senator Feinstein, you’re a joy to work with. To our staffs, I know this has been very hard, a lot of pressure on both sides. To the people who set up the room, thank you. To the witnesses who chose to participate today as private citizens, thank you. To the police officers who made this go well, thank you. To my staff who bore the brunt of this, I really do thank you.
Lindsey Graham: (05:17:13)
So, what we’re going to do now is end where we began. My view of the Affordable Care Act is different from South Carolina’s point of view. We’re getting about a billion dollars less because of the formula. We’re down to one exchange. We started with five and premiums have gone up. Those issues will be decided at the ballot boxes close election, everywhere.
Lindsey Graham: (05:17:38)
All I can say is that voting does matter, and I’m sorry that anybody has to wait in line. We need to make sure we deal with that as a nation, but voting participation South Carolina is very strong. I am happy about that. This is a chance to have your say. The stakes are high, as been well articulated here, but let me just say the election will come. Winners will be declared and we get to start over.
Lindsey Graham: (05:18:04)
The thing I like most about democracies is a journey without a destination. When are we going to get there? We never actually do. When you’re a child, you’re wanting to get to wherever you want… You’re excited about going. It really is the journey. And I don’t know how this election is going to come out. I’m hopeful for our side. I feel good about it, but having said that, 2016 was a curve ball in many ways and I just don’t know what’s going to happen, but the more people vote, the better.
Lindsey Graham: (05:18:36)
And when it’s all over, and it’ll be over in a few weeks, I’ll just say this. If I’m around, I will commit myself to starting over; looking forward, not backward. And to the judiciary committee, we talked about things that really matter. We’ve had our differences, but we’re talking about Section 230. I think that’s mattering more every day. And the fact that we had a unanimous vote to make sure that social media outlets earned their 230 protection when it comes to protecting children against sexual exploitation, it’s a darn good place to start. A lot of smart people on this committee. I mean, incredibly smart about antitrust, about intellectual property.
Lindsey Graham: (05:19:20)
So this committee, in my view, even though we’ve had a rough ride lately has the potential, if we all embrace it, to engage each other and make America a stronger, safer place. To my friend, Senator Lee, I don’t think anybody likes their job more than you do. I’ve never seen anybody… Senator Coons, you’re definitely in that category… Who’s so enthusiastic about the law and politics.
Lindsey Graham: (05:19:49)
I’ll end with this: Judge Barrett, I have had an opportunity to witness several people apply for the job of being a Supreme Court Justice. I have never met a more amazing human being in my life, not from just the professor who helped the struggling young blind student and everybody else she’s helped, but just your knowledge of the law, your disposition. Your character in the ABA rating, I think was well-earned. So the hearing regarding judge Amy Barrett to become Associate Justice of the Supreme Court is now over. The markup will be October the 22nd. To all who got us here, thank you very much.